Mujahid v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 11TH DAY OF DECEMBER 2017/20TH AGRAHAYANA, 1939** **Bail Appl. No.6792 of 2017 () -----------(CRIME NO.2479/2016 OF ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM)** ## **PETITIONER(S)/ACCUSED:** **---------------------** **MUJAHID, AGED 42 YEARS, S/O. ABOOBACKER, PULLADIPPARAMBIL HOUSE, KARIATHANKAVU, BALUSSERY, KOZHIKODE.** **BY ADVS.SRI.S.RAJEEV** **SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE** **RESPONDENT(S)/STATE:** **--------------------** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. (CRIME NO.2479/2016 OF CENTRAL POLICE STATION, ERNAKULAM DISTRICT)** **2. STATION HOUSE OFFICER, CENTRAL POLICE STATION, ERNAKULAM DISTRICT-682 018. (CRIME NO. 2479/2016 OF CENTRAL POLICE STATION, ERNAKULAM DISTRICT).** **BY PUBLIC PROSECUTOR MR. AJITH MURALI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11-12-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **RAJA VIJAYARAGHAVAN V., J** = = = = = = = = = = = = = = = = = = B.A. No. 6792 of 2017 = = = = = = = = = = = = = = = = = = Dated this the 11[th] day of December, 2017 ## **ORDER** - 1.This is an application filed under Section 438 of the Code of Criminal Procedure. - 2.The petitioner herein is arrayed as the sole accused in Crime No.2479/2017 of Central Police Station, Ernakulam, registered alleging offences punishable under Sections 121, 153(A) and 295(A) of the Indian Penal Code. - 3.The de facto complainant is the State Committee Member of the Hindu Advocates' Forum. He had occasion to watch a speech rendered by the petitioner which was uploaded in the Youtube. A transcript of the relevant portion of the speech is extracted in Annexure-1 complaint. In his speech, the petitioner exhorts members of the Muslim faith to refrain from paying money by way of donation or otherwise to people who approach them for conduct of festivals in Hindu Temples. He says that it would amount to “Shirk” if they encourage this practice. He further goes on to state in his speech that this BA.6792/17 ## **-:2:-** would amount to supporting “idolatry” which is prohibited in the Quran, the holy text of persons practising the Muslim faith. He then states that if any person approach a person practising the Muslim faith asking for funds for running a brothel or for opening a liquor parlour they would not support the said cause. However, the same is not the consequence if one is approached for funds for conduct of a festival. Without thinking twice, they would part with the amount under the premise that it is not sinful under Islam. He also states that there is a tendency among members of the Muslim faith in viewing lightly the practice of seeking blessings from Spiritual Gurus like Sri Sri Ravishankar or Mata Amrithandamayi who are held in great esteem by a certain section of the people. He reminds his followers to take these matters seriously and to refrain from committing the vice of Shirk. - 4.According to the de facto complainant, the intention of the petitioner is to promote enmity between different groups and to outrage religious feelings of a class of people by insulting their religion and their religious beliefs. - 5.The learned counsel appearing for the petitioner submitted that BA.6792/17 ## **-:3:-** the petitioner is an Islamic Scholar and the speech in question was rendered by him in a Mosque. He contends that in Islam, “ shirk ” is the sin of practising idolatry or polytheism. The deification or worship of anyone or anything besides the singular God, i.e. Allah is considered sinful. As a Muslim Scholar whose mission in life is to spread the words of Holy Quran, he is religiously bound to teach the members of Islam to shun the practice of ascribing or the establishment of "partners" placed beside God. It is a vice and is opposed to the most important virtue that is to be practised, namely monotheism. He had only called upon members of the Muslim faith to refrain from the practice of “ Shirk”. The learned counsel copiously refers to the Holy Quran to substantiate his contentions. It is also contended that the petitioner is entitled to freedom of conscience and the right freely to profess, practice and propagate religion subject of course to public order, morality and health. This right is guaranteed under Article 19(1) (a) and Article 25 of the Constitution of India to the petitioner according to the learned Counsel and the intention behind registration of the crime is only to stifle this Constitutional right. He also referred to **Manzar Sayeed** BA.6792/17 **-:4:-** **Khan v. State of Maharashtra and Another** [2007 (5) SCC - 1], **Joy Cherian v. Sub Inspector of Police** [2015 (2) KHC 570] and **Balwant Singh and Another v. State of Punjab** [1995 (3) SCC 214] to substantiate his contention that the ingredients of the offence under Section 153A or Section 295 A are not be made out. 6. The learned public prosecutor countered the submissions with vehemence and it was submitted that the speech of the petitioner which was uploaded and was viewed by thousands had the potential to outrage the religious feelings of Hindus and to hurt their religious beliefs. - 7.I have considered the submissions and have gone through the materials on record. It appears that the petitioner was served with a notice under section 41 (A) of the Code of Criminal Procedure and on receipt of the notice the petitioner has rushed to this Court with this petition. - 8.It is by now settled that at the time of consideration of bail application, a detailed examination of the evidence or an elaborate documentation of the merits of the case has to be avoided. Having considered the allegations in the complainant BA.6792/17 **-:5:-** and the transcript of the speech which has been produced by the petitioner, who claims to be an Islamic Scholar, one would have expected him to choose his words more carefully without hurting the religious sentiments of overly sensitive people professing other faiths. Promoting ones faith need not be by denigrating the faith or feeling of another. In a multi-religious multicultural society, tolerance and mutual trust is essential to maintain harmony among the various religious and ethnic groups. Unrestrained speeches causing umbrage to followers of other faiths ought to be been diligently avoided by persons such as the petitioner who claims to be an Islamic Scholar. Religion and holy texts should never be used to spread hate and disharmony but instead to spread universal harmony, tolerance and brotherhood. Dalai Lama, the religious and spiritual head of Tibet, has famously stated that the purpose of religion is to control yourself and not to criticise others. Be that as it may, it does not appear to me that the custodial interrogation of the petitioner is called for in the instant case. Having regard to the nature and gravity of the allegations, the materials in support thereof, the severity of the punishment which conviction would entail, the character and antecedents BA.6792/17 **-:6:-** of the petitioner, the possibility of the petitioner fleeing from justice and other facts and circumstances, I am of the view that the relief of pre-arrest bail can be granted to the petitioner, subject to conditions. In the result, this application will stand allowed, subject to the following conditions: i). The petitioner shall appear before the investigating officer within ten days from today and shall undergo interrogation. Thereafter, if he is proposed to be arrested, he shall be released on bail on his executing a bond for a sum of Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum. ii). The petitioner shall make himself available for interrogation on every saturdays between 9 a.m. and 11 am for a period of one month of till the laying of the final report which ever is earlier. He shall thereafter appear as and when required by the Investigating officer . iii).The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the court or to any police officer. iv).The petitioner shall not commit any similar offence while on bail. v). The petitioner shall surrender his passport before the court below and if he is not in possession of the same , he shall file an affidavit to that effect within five days of his release. Application for release of the passport, if any, shall be considered BA.6792/17 ## **-:7:-** by the Trial court at the appropriate stage. vi). If the petitioner surrender before the Magistrate, this order shall not be applicable and the learned Magistrate may pass appropriate orders. In case of violation of any of the above conditions, the concerned court on being noticed of that fact will be empowered to cancel the bail. Sd/Raja Vijayaraghavan V., Judge krj.11/12 //True Copy// P.A. To Judge