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2013 DIGILAW 335 (ORI)

Sudhir Kumar Panda v. State of Orissa

2013-08-23

B.R.SARANGI

body2013
JUDGMENT Dr. B.R. SARANGI, J. The petitioner has filed this application under Section 482, Cr. P.C. with a prayer to quash the entire proceeding as well as the order dated 02.12.2003 passed by the learned S.D.J.M., Bhadrak in G.R. Case No. 1050 of 2001 arising out of Bhadrak Town P.S. Case No. 0154 of 2001 taking cognizance of the offence under Section 153-A of the Indian Penal Code, in short, 'Code'. 2. The prosecution case, in short, is that the petitioner is a News Reporter in local daily 'Kalantar'. A news item was published in the newspaper on 27.9.2001 stating that the local Muslims of Bhadrak were raising fund for Taliban Government. Consequent upon such publication, it is alleged that there was resentment between two groups in the locality leading to communal disharmony for which the petitioner is responsible. With this allegation FIR was lodged by the A.S.I. of Police. On completion of investigation, charge-sheet was filed against the petitioner for commission of offence under Section 153-A, IPC and basing upon which cognizance was taken on 02.12.2003. 3. Mr. Dayananda Mohapatra, learned counsel appearing for the petitioner strenuously urged that the news item published in local daily 'Kalantar', does not make out a case under Section 153-A of the Code. He further urged that on perusal of the said news item, it would appear that there is neither any wording of incitement or causing disorder in the news item published nor the writing is couched in intemperate, undignified and wild language having a tendency to insult the feelings or the deepest religious convictions of any section of the people and more so, the editors were not against the Muslim community as a whole but against the anti-national elements in them and as such, there is no malicious intention 'causing any disorder of public peace and harmony in publication of such news item. Therefore, the cognizance taken under Section 153-A of the Code is unsustainable and seeks for quashing of the same. To substantiate his contention, he has relied upon the judgment of the Supreme Court in Bilal Ahmed Kaloo v. State of Andhra Pradesh reported in 1997 Cri LJ 4091 = (1997) 7 SCC 931 and of the Bombay High Court in Joseph Bain D'Souza and another v. State of Maharashtra and others reported in 1995 Cri LJ 1316. 4. Mr. To substantiate his contention, he has relied upon the judgment of the Supreme Court in Bilal Ahmed Kaloo v. State of Andhra Pradesh reported in 1997 Cri LJ 4091 = (1997) 7 SCC 931 and of the Bombay High Court in Joseph Bain D'Souza and another v. State of Maharashtra and others reported in 1995 Cri LJ 1316. 4. Mr. Mohapatra, learned counsel for the petitioner has relied upon a judgment of the apex Court in Manzar Sayeed Khan v. State of Maharashtra and another, (2007) 37 OCR (SC) 499, stating that the apex Court has been pleased to quash the FIR which was filed on the allegation of commission of offence under Section 153-A, IPC. In the said judgment, the apex Court made a reference to Bilal Ahmed (supra) and observed that merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections. Mr. Mohapatra further urged that the order of taking cognizance suffers from non-compliance of the sanction granted under Section 196, Cr. P.C., and therefore the entire proceeding should be quashed in the interest of justice, equity and fair-play. 5. Mr. Zaffrullah, learned counsel for the State could not initially rebut the contention raised by Mr. Mohapatra, with reference to the sanction as required under Section 196, Cr. P.C. when the case was reserved for judgment. Thereafter the matter was listed for delivery of judgment and just before delivery. Mr. Zafrullah produced the case diary from which it transpired that the Government in Home Department has granted sanction prior to taking cognizance. Therefore, though the matter was on the Board on 2.8.2013 for delivery of judgment, the same was not delivered and the matter was directed to be listed under the heading "to be mentioned" for seeking clarification from the parties. Accordingly, the matter was taken up on 16.8.2013 on which date this Court made a query from the counsel appearing for the parties whether sanction as required under Section 196 is required before taking cognizance of the offence alleged under Section 153-A, IPC. 6. Mr. Mohapatra, learned counsel appearing for the petitioner states that to his knowledge sanction has not been obtained before taking cognizance. Per contra, Mr. Zaffrullah, learned counsel for the State produced the case diary. 6. Mr. Mohapatra, learned counsel appearing for the petitioner states that to his knowledge sanction has not been obtained before taking cognizance. Per contra, Mr. Zaffrullah, learned counsel for the State produced the case diary. On perusal of the same, it reveals that Letter No.1085/SR dated 30.11.2003 of Superintendent of Police, Bhadrak along with Government sanction from the Home Department, Orissa, Bhubaneswar vide order No. 51500 dated 24.11.2003 was received. Thus, it is clear that sanction has been granted on 24.11.2003 and thereafter, charge-sheet was filed on 30.11.2003 and cognizance was taken on 2.12.2003. In view of such position, the contention raised that before taking cognizance on 2.12.2003, no sanction has been obtained by the Court fails thereby the argument advanced by Mr. Mohapatra to this extent cannot be accepted. 7. In order to appreciate the contention of Mr. Mohapatra, learned counsel for the petitioner, Section 153-A, IPC is quoted below: "153-A. Promoting enmity between different groups 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 tranquillity, or....... shall be punished with imprisonment which may extend to three years, or with fine, or with both." 8. The objects and reasons of enactment of Section 153-A, IPC is quoted below: "In order effectively to check fissiparous communal and separatist tendencies, whether based on grounds of religion, caste, language or community or any other ground, it is proposed to amend Section 153-A of the Indian Penal Code so as to make it a specific offence for anyone to promote or attempt to promote feelings of enmity or hatred between different religious, racial or language groups or castes or communities. The Bill also seeks to make it an offence for anyone to do any act which is prejudicial to the maintenance of harmony between different religious, racial or language groups or castes or communities and which is likely to disturb public tranquillity. Clause-2. Promoting enmity between different groups on grounds of religion, race language, etc., is made an offence under Section 153-A of the Indian Penal Code. It is proposed to include therein promoting enmity between different groups on grounds, such as place of birth, or residence as well. It is also proposed to widen the scope of the provision so as to make promotion disharmony or feelings of ill-will an offence punishable thereunder. Clause (b) of the said section provides for the punishment for doing acts prejudicial to the maintenance of harmony between different groups. That provision is also proposed to be widened so as to include acts prejudicial to the maintenance of harmony between different regional groups as well. It is also proposed to provide for enhanced punishment and a minimum punishment for any such offence committed in place of worship. The section is being substituted by this clause to achieve the purpose. Clause-2. The Committee are of the opinion that having to the enhanced punishment of imprisonment upto five years provided in Sub-section (2) of Clause 2, the provision for minimum punishment of imprisonment of two years may be omitted. Accordingly, the words 'which shall not be less than two years but' in Subsection (2) of proposed Section 153-A have been omitted." 9. On. perusal of the provision of Section 153-A of the Code read with objects and reasons, it is clear that the same has been enacted to prevent various classes from coming into conflict by mutual abuse and recrimination and is intended to prevent breaches of public tranquillity, which might result from exciting feelings of enmity between different religious, racial or language groups or castes or communities. As it reveals from the news item published, it does not satisfy the ingredients of Section 153-A of the Code so as to bring home the charge against the petitioner for the said offence. As it reveals from the news item published, it does not satisfy the ingredients of Section 153-A of the Code so as to bring home the charge against the petitioner for the said offence. More specifically, in a criminal case mens rea plays a vital role and on perusal of the article published, I find that it does not make out a case that the intention is to cause disorder or incite people to violence which is the sine qua non of the offence under Section 153-A of the Code, the prosecution has to prove the existence of mens rea in order to succeed in the case. Specifically mens rea or malicious intention on the part of accused to commit offence of promoting disharmony amongst different religions is essential under Section 153-A, IPC. 10. On bare reading of the entire writings, it would appear that the news item does not tend to promote hatred between different sections of the public. Therefore, the news item which has been published does not make out a case to come under the purview of Section 153-A of the Code, save and except it sends only a message that there is allegation of formation of some Muslim organization and there is demand from the side of the Shiv Sena by cautioning the higher authorities to save from further riot, that itself cannot constitute an offence under Section 153-A of the Code as alleged. Apart from the same, the judgment of the apex Court in Bilal Ahmed (supra), clearly indicates that Section 153-A, IPC covers a case where a person by "words, either spoken or written, or by signs or by visible representations" promote or attempts to promote such feeling. Merely inciting the feeling of one community or group without any reference to any other community or groups cannot attract the provisions of Section 153-A, IPC. In Joseph Bain D'Souza and another (supra) articles were published in the news paper 'Samna' in the form of editorial after fall of Sabri Masjid and riot took place in the area predominantly occupied by Muslims. Whether the said article came within the ambit and purview of Section 153-A and Section 153B of the Code was under consideration by this Court. The Bombay High Court held that the Court will have to read the article as a whole and not out of the context. Whether the said article came within the ambit and purview of Section 153-A and Section 153B of the Code was under consideration by this Court. The Bombay High Court held that the Court will have to read the article as a whole and not out of the context. The Court cannot go into the motive of writing those articles because motive is irrelevant. The articles when read as a whole must fall within the mischief of Section 153-A and Section 153-B of the Code and if after reading of the articles, Court .comes to the conclusion that the same are likely to promote ill-will, spite and hatred amongst the communities, then the said articles or editorials will come within the mischief of Section 153-A and Section 153-B of the Code. In the said article published, reference was made in respect of holy Koran which according to the editor, not only belongs to the Muslims but also to the whole community. In the said editorials, appeal was also made to the Muslims to forget the past and to join the mainstream of public life in India. It is true that in some of these articles due to the emotional outburst high-flown and caustic language was issued but this per se will not fall within the mischief of Section 153-A and Section 153-B of the Code. 11. Referring to the case of Manzar Sayeed Khan (supra) and also the provisions contained in Section 153-A, IPC it clearly 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 tranquillity. 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 153-A of IPC. 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 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 153-A 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 there and connect them by a meticulous process of inferential reasoning. 12. After due analysis the apex Court in para-15 and 16 has observed as follows : "15. In Ramesh Chotalal Dalal v. Union of India and Ors. ( AIR 1988 SC 775 ) this Court held that TV serial "Tamas" did not depict communal tension and violence and the provisions of Section 153-A of IPC would not apply to it. It was also not prejudicial to the national integration falling under Section 153B of IPC. Approving the observations of Vivian Bose, J. in Bhagvati Charan Shukla v. Provincial Government (AIR 1947 Nagpur 1), the Court observed that the effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. It is the standard of ordinary reasonable man or as they say in English Law, "the man on the top of a calpham omnibus". 13. Again, Bilal Ahmed (supra), it is held that the common feature in both the sections, viz. Sections 153-A and 505(2), being promotion of feeling of enmity, hatred or ill-will "between different" religious or racial or linguistic or regional groups or castes and communities, it is necessary that at least two such groups or communities should be involved. Further, it was observed that merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections. 14. In view of such position, looking at the article published, it does not make out a case which would fall within the mischief of Section 153-A of the Code and as such, there is no mens rea attributable to such publication. 14. In view of such position, looking at the article published, it does not make out a case which would fall within the mischief of Section 153-A of the Code and as such, there is no mens rea attributable to such publication. More so, the petitioner himself is a journalist and he knows the dos and don'ts of the publication very well. That apart the G.R. Case is of the year 2001 and in the meantime 12 years have elapsed. Therefore, I am of the considered opinion that since no case under Section 153-A of the Code is made out against the petitioner pursuant to the news item published, allowing the proceeding to continue will amount to abuse of the process of the Court. Therefore, ends of justice will be better served if the proceeding and the order of cognizance dated 02.12.2003 passed in G.R. Case No. 1050 of 2001 pending in the file of learned S.D.J.M., Bhadrak are quashed. Accordingly, the same are hereby quashed. The Criminal Misc. Case is allowed. CRLMC allowed.