Saturday, 25 July 2020

Kerala HC: Merely inciting the feelings of one community or group without any reference to any other community or group cannot attract the provisions of S.153A IPC

 Coming to Section 153-A, the essential

ingredient to attract the offence is promoting
feeling of enmity, hatred or ill-will between
different religious or racial or linguistic or
regional groups or castes or communities.(emphasis
supplied) S.153-A 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. 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,
1997 KHC 1044 : 1997 (7) SCC 431 : 1997 SCC (Cri)
1094 : AIR 1997 SC 3483 : 1997 CriLJ 4091). 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 S. 153A IPC (See Manzar
Sayeed Khan v. State of Maharashtra, 2007 KHC
3326 : AIR 2007 SC 2074 : JT 2007 (5) SC 335 : 2007

(5) SCC 1 : 2007 CriLJ 2959 : 2007 (2) SCC (Cri)
417).
14. The essence of the offence under S.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 S.153A
IPC.

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
 MR. JUSTICE ASHOK MENON

Bail Appl..No.3302 OF 2020

PRADEEP R.S @ HARI PALOD Vs  STATE OF KERALA

COMMON ORDER
B.A.No.3302/2020, B.A.No.3959/2020 and
B.A.No.3563/2020
[Dated, this the 22nd day of July, 2020]

Applications filed under Section 438 Cr.P.C for
anticipatory bail.
2. The applicants in B.A.Nos.3302/2020,
3959/2020 and 3563/2020 are the 8th, 11th and 12th
accused, respectively, in Crime No.1134/2020 of
Perumbavoor Police station, for having allegedly
committed offences punishable under sections 120B,
143, 144, 147, 148, 153-A, 454, 380 and 427 read
with Section 149 of the Indian Penal Code, Section
5 of Kerala Prevention of Destruction to Private
Property and Payment of Compensation Act, and
Section 4 (2), (d) and (f) of Kerala Epidemic
Diseases Ordinance, 2020.
3. The prosecution case in brief is thus:-
The accused in the aforesaid crime, including the
petitioners, hatched a conspiracy to demolish a

film set constructed at Kalady riverside, depicting
a Church, and formed an unlawful assembly on
24.05.2020, committed riot armed with deadly
weapons, broke into the structure, committed theft
from inside the structure and mischief by
destroying it, causing a loss to the tune of Rs.80
lakhs to the film producer and damaged the walls of
the sanctum sanctorum of the Kalady Mahadeva Temple
causing a loss of Rs.25,000/- thereby promoting
enmity, hatred or ill-will between different groups
on the grounds of Religion. On the basis of a
complaint lodged by the Secretary of Maha Sivaratri
Committee of Kalady Mahadeva Temple, the crime was
registered
4. Accused No. 8 contends that he is innocent
and was not even present at the scene of
occurrence. He is the State General Secretary of a
political organisation named Antharastra Hindu
Parishad (A.H.P). The 1st accused is the District

President of the said Organisation. The allegation
against him is that he had published a post on his
Facebook page after the aforesaid incident
admitting his role in the act of demolition by the
members of his organisation and justified it. His
act indicates that he was part of the conspiracy in
consequence of which the unlawful assembly
consisting of the other accused perpetrated the
crime. It is stated that the film shooting set was
an illegally constructed structure on the banks of
Periyar river, and his organisation had filed a
complaint before the Panchayat to take necessary
steps to remove the same. Despite the complaint, no
action was taken by the Panchayat.
5. The 11th accused states that he is innocent
and has got nothing to do with the alleged incident
and has been implicated without any basis. He has
no criminal antecedents. He is willing to cooperate
with the investigation.

6. The 12th accused claims to be a boy aged 21
who has completed his course in ITI and is
presently engaged in laying of interlock bricks. He
had on 24.05.2020 gone to Kalady to buy pork along
with his friend Rahul and on seeing a crowd
gathering at the riverbed, he went to there and
inadvertently got embroiled in the crime. He has no
criminal antecedents and has no allegiance to any
political organisation. He has been falsely
implicated in the crime and seeks indulgence from
this Court for a pre-arrest bail.
7. Learned Public Prosecutor, Sri.C.K.Suresh,
has vehement objections about granting of prearrest
bail to the accused. It is submitted by him
that for the last 75 years Sivaratri is being
celebrated at the banks of river Periyar adjoining
the Kalady Mahadeva Temple, which is being managed
by the Mahasivaratri committee. All festivals in
connection with the temple are being held in the

place. When the production unit of a film
approached the Committee for construction of a film
set, the Committee readily agreed and it is with
their permission that the temporary structure was
put up. It was agreed by the production unit that
soon after the film shooting is over, the structure
would be pulled down. Huge amount of money was
spent for construction of the temporary structure.
Valuable items like generator etc. were also kept
inside the said structure. Antharashtra Hindu
Parishad (A.H.P) and its subsidiary Bhajrang Dal
under the leadership of the 8th accused hatched a
conspiracy to pull down the structure solely
because it depicted a Church and they could not
digest the structure depicting a Church [even
though it was temporary in nature] occupying the
precincts of Mahadeva temple. The 8th accused has
incited the local sympathisers of Bhajrang Dal
which includes the other accused, in particular
accused 1 and 2, and those persons having very

serious criminal antecedents took initiative with
the other accused and demolished the structure.
8. It is pointed out by the learned
Prosecutor that Section 153-A Part-I would
definitely be attracted because the intention was
to create disharmony among religious groups. The
learned counsel appearing for the applicants would
contend that no objection whatsoever has been
raised by the Christians of the locality or
anywhere else regarding grievance about demolition
of the structure depicting a Church. It is pointed
out that it is not a Church but only a replica of a
Church. The learned Prosecutor would question that
if it was only a structure having resemblance of a
Church and not a genuine Church, why should the
accused be aggrieved about such a structure
standing there for a brief period till the shooting
is over. Hence, the intention was poisoning the
minds of Hindus of the locality against the

Christians stating that a Church or something
resembling a Church has come up in the precincts of
Mahadeva temple, which may probably be permanently
snatched away by the members of the other religion.
That is how the provisions under Section 153-A is
attracted in this case. Taking advantage of the
lock-down situation, the applicants and the other
accused thrown all the preventive measures during
the pandemic, barged into the structure, stole away
valuable articles from inside and demolished the
entire structure. The learned Public Prosecutor
has also pointed out the post in the Facebook page
of the 8th accused, copy of which has been produced
by the 8th accused in which there is a clear
indication given by the 8th accused that his
organisation had warned them [Committee members and
production unit] when such a structure was built up
in the precincts of Mahadeva temple and they
ignored that warning and hence it was pulled up.
He expressed his happiness over the said act of his

followers and congratulated all those who
participated in this act of mischief, the first
accused Melattur Rethish, the Ernakulam Division
President of Rashtriya Bhajrang Dal, in particular.
This post, according to the learned Public
Prosecutor, is clearly intended at inciting the
religious feelings of Hindus against Christians.
9. The 8th accused has in the bail application
contended that the film set was illegally
constructed on the riverbanks which is a property
exclusively in the possession of the Government of
Kerala and the Kalady and Okal Grama Panchayats.
The members of the A.H.P had filed a complaint as
Annexure A1 before the Panchayat Secretary, Kalady
Grama Panchayat stating that the construction of a
Church for the purpose of film shooting at the
Kalady Sivaratri riverbank is brought to their
knowledge. Such activities on the riverbank used
for celebration of Sivaratri for the last 72 years

would hurt the feelings of Hindu believers and
amounts to an affront and challenge to them. The
film set constructed at the Sivaratri riverbank has
therefore to be removed and has requested action to
be taken by the Panchayat in that regard. The 8th
accused states that in spite of the aforesaid
complaint by the A.H.P, no action was taken by the
Panchayat. Information was thereafter sought from
the Grama Panchayat under the Right to Information
Act as per Annexure-A2 as to whether sanction has
been obtained from the Panchayat for film shooting
and construction of Church film set in the
Sivaratri riverbank. Annexure-A3 reply was provided
by the Panchayat stating that no such permission
was obtained for shooting of a film or for
constructing a film set of a Church. It is stated
that without ascertaining the veracity of the
complaint filed by the Secretary of Maha Sivaratri
festival committee, who has facilitated illegal
encroachment and construction of a film set on

revenue property, a crime was registered. It is
further stated that offence under Section 454 IPC
is also not attracted because, the film set is not
a dwelling house or place of worship. It is stated
that the Secretary of the festival committee has no
locus standi to file such a complaint. It is
further submitted that the Facebook post of the 8th
accused does not in any way promote enmity between
different groups on the grounds of religion, as
pointed out by the learned Prosecutor. No other
religion is even referred to by the 8th accused. It
is further submitted that none of the Christians
have raised any objection about demolition.
10. The recitals in the bail application filed
by the accused, indirectly amounts to an admission
regarding the grievance that the A.H.P had about
the construction of the film set and the film
shooting at the precincts of the Mahadeva Temple.
It is therefore a justification about destruction

of the film set by the members of A.H.P. Added to
that, the Facebook post of the 8th accused justifies
and congratulates the act of demolition. No other
proof is required to establish conspiracy led by
the 8th accused, submits the learned Prosecutor.
11. Though prolix discussion regarding the
maintainability of offences under Sections 153-A
and 454 I.P.C is uncalled for in an application for
bail, I do have my own doubts about the commission
of offence under Section 153-A I.P.C, for reasons
which I will elucidate.
12. To attract an offence of lurking house
trespass or housebreaking punishable under Section
454 of the I.P.C, the prosecution will have to
prove that there was housebreaking or house
trespass as defined under Sections 442 and 445 of
the I.P.C. The argument of the learned counsel
appearing for the accused persons herein is that
the film set is not a house or a place of worship.

"House-trespass" is defined under Section 442 I.P.C
as thus:-
"House- trespass:-Whoever commits criminal
trespass by entering into or remaining in any
building, tent or vessel used as human dwelling
or any building used as a place of worship, or
as a place for the custody of property, is set
to commit "house-trespass"."
A reading of the aforesaid provision and in
particular the expression "in building used as a
place for custody of property", I am of the view
that a film set, though a temporary structure, was
being used as a place for custody of property like
generator, etc; which was allegedly stolen. Since
the definition also includes a tent, and does not
state that it should be a permanent structure, even
a temporary film set would fall within the
definition of a house which in this case, can be
said to be a structure used for custody of
property. Hence, I have no doubts about Section 454
getting attracted in this case.
13. Coming to Section 153-A, the essential

ingredient to attract the offence is promoting
feeling of enmity, hatred or ill-will between
different religious or racial or linguistic or
regional groups or castes or communities.(emphasis
supplied) S.153-A 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. 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,
1997 KHC 1044 : 1997 (7) SCC 431 : 1997 SCC (Cri)
1094 : AIR 1997 SC 3483 : 1997 CriLJ 4091). 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 S. 153A IPC (See Manzar
Sayeed Khan v. State of Maharashtra, 2007 KHC
3326 : AIR 2007 SC 2074 : JT 2007 (5) SC 335 : 2007

(5) SCC 1 : 2007 CriLJ 2959 : 2007 (2) SCC (Cri)
417).
14. The essence of the offence under S.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 S.153A
IPC.
15. In the case in hand, the comments made by
the 8th accused in the Facebook is only with regard
to the pride of A.H.P, or at best the Hindu
community. The comments made by him refers only to
the the Mahadeva temple and not permitting such

activities of construction within the precincts of
the temple. Therefore, prima facie, the offence
punishable under S.153-A is not attracted to the
facts of the case. (See also Bijumon v. State of
Kerala 2018 (4) KHC 73.) At best, the Facebook post
would amount to an admission regarding the
involvement of the 1st accused as the President of
the Ernakulam Division of Bajrang Dal and his
supporters.
16. The fact that the 1st accused has 28
criminal cases against him and that accused of 4
and 7 are also involved in criminal cases may not
militate against accused 8, 11 and 12 from claiming
a pre-arrest bail. Section 380 I.P.C is the only
offence that attracts punishment up to 7 years of
imprisonment. Offence under Section 454 IPC
attracts a punishment of up to 3 years
imprisonment, Section 153-A attracts punishment of
between 3 to 5 years and Section 427 would attract

punishment of only up to 2 years imprisonment. The
main perpetrators of the crime like accused 1, 2, 4
and 7 have already been arrested. The applicants in
these applications admittedly do not have any
criminal antecedents. I find no reason to hold that
the applicants may not co-operate with the
investigation. Custodial interrogation of the
applicants may not be necessary. Hence, I find that
the applicants are all entitled to anticipatory
bail.
17. In the result, the Bail Applications are
allowed and the applicants are directed to
surrender before the investigating officer within
two weeks and after interrogation in the event of
their being arrested, they shall be released on
bail on execution a bond for Rs.50,000/- (Rupees
fifty thousand only) each with two solvent sureties
each for a like amount to the satisfaction of the
investigating officer and on following further

conditions:-
(1) They shall not get involved in similar
crimes during the bail period.
(2) They shall appear before the investigating
officer as and when called for and co-operate with
the investigation.
(3) They shall not tamper with evidence,
influence or intimidate witnesses.
Breach of the bail conditions shall entail in
cancellation of the bail on an application being
filed by the prosecution before the jurisdictional
Court.
Sd/-
ASHOK MENON
JUDGE

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