I have gone through the entire case record including the challan prepared under Section 173 Cr.P.C and considered the submissions of respective counsel for the parties. It is true that except wearing a T-shirt with a photograph of a leader of his own party by the petitioner, no overt act has been attributed against him and there is no material whatsoever even to infer that the petitioner was acting under any pre-oriented plan as alleged or to suggest that by words either spoken or written or by any other means as enumerated under Section 153-A IPC, he incited anyone to create violence or promote communal hatred. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153-A IPC and there is no existence of mens rea for the prosecution to succeed . Therefore, having found no prima facie material against the petitioner to constitute an offence punishable under Section 153-A IPC, this Court is of the view that the benefit of bail can be extended to him.
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-45796-2022 (O&M)
KARAMJIT SINGH GILL Vs STATE OF PUNJAB
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
DECIDED ON: 13th DECEMBER, 2022
Prayer in the present application is for arraigning the applicant
as Respondent No.2.
In view of averments made in the present application, the
applicant-Sulkhan Singh son of Shri Parkash Singh is ordered to be
impleaded as respondent No.2.
Amended memo of parties is taken on record.
Application, accordingly stands allowed.
Application is allowed, as prayed for.
Annexures R-2/1 to R-2/6 are taken on record subject to all just
exceptions.
Application is allowed, as prayed for.
Police report/Challan dated 05.10.2022 is taken on record as
Annexure P-4, subject to all just exceptions.
CRM-M-45796-2022
The instant petition has come up before this Court invoking the
jurisdiction under Section 439 Cr.P.C seeking regular bail in case FIR No.
103, dated 17.08.2022, under Section 153-A of the Indian Penal Code, 1860
(for short 'IPC'), registered at Police Station E-Division, Amritsar City.
Dr. Anmol Rattan Singh, learned Senior counsel for the
petitioner contends that he has been falsely implicated in the present case on
false and baseless allegations while referring to the FIR dated 17.08.2022
(Annexure P-1) lodged on a complaint by one Sulkhan Singh, Manager,
Sach Khand Shri Harmandir Sahib, Shri Darbar Sahib, Amritsar. He has
drawn the attention of this Court to the story of the prosecution as recorded
in the said FIR with the allegations attributed qua the petitioner, of which the
relevant reads as under:-
“Sir, on dated 16.08.2022 one person came at Sachkhand
Harmandir Sahib, Sri Darbar Sahib Amritsar, after taking a
dip in the holy water and thereafter, wore a t-shirt having
picture of Jagdish Tytler who was an accused of 1984 Sikh
genocide and after clicking a photograph and without paying
obeisance went out in his skoda car along with his security
officials. Under a conspiracy he has tried to disturb the
atmosphere and he has hurt the Sikhs sentiments. His activities
are recorded in CCTV cameras. He is also having a security
(gunman). From the social media we came to know that his
name is Karamjit Singh Gill who is known s Chairman of
SC/ST Cell Congress. Legal action may kindly be taken.
Documents attached. Photocopy of Picture. Sd/- Sulakhan
Singh Manager, Sachkhand Sri Harmandir Sahib, Shri Darbar
Sahib, Sri Amritsar.”
Learned Senior counsel contended on the strength of Supreme
Court Judgment in the case of “Arnesh Kumar vs. State of Bihar; (2014) 8
SCC 273, that in the offence under Section 153-A IPC Part-I, the
punishment is of upto three years or fine or both whereas, even Part II
carries punishment upto 5 years and fine and, therefore, applying the ratio
laid down in the Arnesh Kumar’s case supra ought to have been applied by
serving a notice under Section 41-A Cr.P.C and an opportunity to join the
investigation should have been awarded. He has further stated that no
reasons for detention was disclosed by the Investigating Officer while
forwarding the petitioner before the Illaqa Magistrate.
Learned Senior counsel also laid much stress of the case being
political motivated referring to the complainant being Manager of Shri
Darbar Sahib who might be carrying some enmity with the political leader
Jagdish Tytler with whose photograph printed on the T-shirt wore by the
petitioner. With much force and vehemence, it has been argued on behalf of
the petitioner that offence under Section 153-A IPC is not made out at all as
none of the ingredients laid therein are prima facie evident even from the
bare language of the FIR.
Notice of motion.
Mr. Rajiv Verma, DAG, Punjab puts an appearance having been
served with an advance notice along-with copy of the petition.
Mr. P.S. Hundal, learned Senior counsel, appearing on behalf of
the complainant has vehemently argued that Jagdish Tytler was an accused
in 1984 Sikh Genocide and the petitioner knowing fully well deliberately with an intent to hurt the sentiments of Sikhs’ wore the T-shirt with a picture
of Jagdish Tytler and after taking a dip in the holy pond clicked his
photograph and left in his Skoda car with the security officials. Mr. Hundal,
has contended that such act of the petitioner is under a well planned
conspiracy to disturb the peaceful atmosphere.
Mr. Rajiv Verma, Deputy Advocate General, Punjab has
submitted that the petitioner has committed serious offence under Section
153-A IPC and has been nominated as accused in the present FIR on the
basis CCTV footage and not on the basis of mere suspicion. He further
argues that the role of the petitioner is evident from the fact that he was
wearing a T-shirt having picture of Jagdish Tytler, who was prime accused in
1984 Sikh Genocide and also sent a picture from his mobile phone to some
person with intention to make the same viral. As such, the petitioner does
not deserve the concession of bail.
Heard counsel for the parties at length.
Before proceeding further in the matter, it would be relevant to
have a glance of Section 153-A IPC, which reads as under:-
“153A. Promoting enmity between different groups on ground
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 illwill between
different religious, racials, 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 tranquillity,
(c) organizes any exercise, movement, drill or other similar
activity intending that the participants in such activity shall use
or be trained to use criminal force or violence or knowing it to
be likely that the participants in such activity will use or be
trained to use criminal force or violence, or participates in such
activity intending to use or be trained to use criminal force or
violence or knowing it to be likely that the participants in such
activity will use or be trained to use criminal force or violence,
against any religious, racial, language or regional group or
caste or community and such activity for any reason whatsoever
causes or is likely to cause fear or alarm or a feeling of
insecurity amongst members of such religious, racial, language
or regional group or caste or community,
shall be punished with imprisonment which may extend to three
years, or with fine, or with both”
Considering the provisions, as envisaged in Section 153-A IPC
and examining the contents of FIR, the test for the prosecution is to make out a prima facie case has to establish within the ingredients incorporated therein. Section 153-A IPC would apply if, a person is found doing acts prejudicial to maintenance of harmony by promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc by words either spoken or written or by signs or by visible representations or otherwise promotes or attempts to promote disharmony or feeling of enmity, hatred or ill-will between different religious, racial, language or regional groups or caste or community apart from other factors.
In the instant case mere wearing of a T-shirt with a picture of one on his favorite person with the words “HAPPY BIRTHDAY TO OUR
BELOVED GOD FATHER”, as is evident from Annexures R-2/3 and R-2/4 with the reply filed by respondent No.2 supported by seizure memo Tshirt (Annexure R-2/1), does not reflect any incriminating material or provocative act on the part of the petitioner to bring the case within the ambit of Section 153-A IPC. Moreover, from the identity of the petitioner it transpired that he is General Secretary, SC/ST Cell of the Punjab Pardesh Congress Committee as has been put on record by way of final report under Section 173 Cr.P.C.
The Apex Court in the case of “Patricia Mukhim vs. State of
Meghalaya and other” reported in AIR 2021 Supreme Court 1632 while
deliberating on Section 153-A IPC held as under:-
"9. Only where the written or spoken words have the tendency
of creating public disorder or disturbance of law and order or
affecting public tranquility, the law needs to step in to prevent
such an activity. The intention to cause disorder or incite people
to violence is the sine qua non of the offence under Section 153
A IPC and the prosecution has to prove the existence of mens
rea in order to succeed.
10. The gist of the offence under Section 153 A IPC is the
intention to promote feelings of enmity or hatred between
different classes of people. The intention has to be judged
primarily by the language of the piece of writing and the
circumstances in which it 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 one
take a sentence here and a sentence there and connect them by
a meticulous process of inferential reasoning."
In the instant case no iota of evidence has come forth even in
the challan against the present petitioner with regard to uttering of any word or by any other means which may cause hurt to the feelings of a particular community.
In another judgment “Balwant Singh and another vs. State of
Punjab; (1995) 3 SCC 214” the Supreme Court examining the question to
make out prima facie case under Section 153-A IPC held as under:-
"9. Insofar as the offence under Section 153A IPC is concerned,
it provides for punishment for promoting enmity between
different groups on grounds of religion, race, place of birth,
residence, language, caste or community or any other ground
whatsoever or brings about disharmony or feeling of hatred or
ill-will between different religious, racial, linguistic or regional
groups or castes or communities. In our opinion only where the
written or spoken words have the tendency or intention of
creating public disorder or disturbance of law and order or
effect public tranquility, that the law needs to step in to prevent
such an activity.”
I have gone through the entire case record including the challan
prepared under Section 173 Cr.P.C and considered the submissions of
respective counsel for the parties. It is true that except wearing a T-shirt with a photograph of a leader of his own party by the petitioner, no overt act has been attributed against him and there is no material whatsoever even to infer that the petitioner was acting under any pre-oriented plan as alleged or to suggest that by words either spoken or written or by any other means as enumerated under Section 153-A IPC, he incited anyone to create violence or promote communal hatred. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153-A IPC and there is no existence of mens rea for the prosecution to succeed . Therefore, having found no prima facie material against the petitioner to constitute an offence punishable under Section 153-A IPC, this
Court is of the view that the benefit of bail can be extended to him. It is also weighs in the mind of this Court that investigation in the case is complete, challan stands filed and the petitioner is already in custody for 3 months and 23 days, as is evident from custody certificate dated 12.12.2022.
Accordingly, it is ordered that the petitioner shall be released on
bail on furnishing bail bonds and one local surety to the satisfaction of
learned Chief Judicial Magistrate, Amritsar, however, in order to facilitate
trial the following conditions are imposed on his bail:-
(i) If the petitioner is having any Pass Port, he will surrender
the same before the Investigating Officer immediately.
(ii) He will record his appearance at the police station before
the Investigating Officer once in a week.
(iii) He will not try to influence any of the witnesses of the case
directly or indirectly.
However, the Chief Judicial Magistrate, Amritsar may relax any
of the conditions under (i) or (ii) or both in appropriate circumstances.
In terms of the above, the present petition under Section 439
Cr.P.C. is allowed.
Ordered accordingly.
(SANDEEP MOUDGIL)
13th DECEMBER, 2022 JUDGE
sham
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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