IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.6/2019 BETWEEN:
SRI AJIT HANUMAKKANAVAR AGED ABOUT 35 YEARS HEAD-NEWS & PROGRAMMES C/O SUVARNA NEWS CHANNEL NO.36, CRESCENT ROAD, OPP MALLIGE HOSPITAL, BENGALURU 560001.
... PETITIONER (BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL A/W SRI S. SUDHARSAN, ADVOCATE) AND:
1. STATE OF KARNATAKA BY MANAGALORE SOUTH POLICE STATION MANGALORE 575001.
REPRESENTED BY SPP, HIGH COURT, BANGALORE.
2. SHAREEF PANDESHWAR AGED MAJOR RESIDING AT H.M.S. COMPOUND NEAR RAILWAY GATE, PANDESHWAR, MANGALORE CITY-575001.
... RESPONDENTS (BY SRI S. CHANDRASHEKHARAIAH, HCGP FOR R1; SRI S. BALAKRISHNA, ADVOCATE FOR R2) **** THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE FIR DATED 31.12.2018 REGISTERED IN CR.NO.292/2018 IN MANGALURU SOUTH POLICE STATION, MANGALURU AS PER ANNEXURE-B, PENDING ON THE FILE OF J.M.F.C.-II COURT, MANGALURU.
THIS PETITION COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petitioner is a journalist and currently working as Head of the News and Programmes in the regional Kannada Television channel known and called Suvarna News Channel, which is said to be functioning under the flagship of Asianet News Network Private Limited. In discharge of his duties as a electronic media journalist, he is required to host and conduct several programmes including debate and one such programme which is said to be conducted was known and called “Left, Right & Centre with Ajit”. Accordingly, a programme came to be held on 27.12.2018 and it was aired at 7 p.m. in the above said news channel. Respondent No.2 claiming to be one of the viewers of the petitioner’s programme lodged a complaint on 31.12.2018 at about 16.00 hours with the South Police Station, Pandeshwara, Mangaluru alleging that anchor of the programme i.e, the petitioner herein had posed certain questions to the Panelists, which amount as to hurting the feelings or sentiments of section of the people viz., Muslims of not only the country but also across the world. It was alleged they respected Mohammad Paigambar with reverence and speaking about such person by indirectly demeaning had hurt his sentiments personally and it would lead to communal disharmony in the society and thereby anchor of the programme had committed offences
jurisdictional Police as noticed hereinabove in Crime No.292/2018 under Sections 153A and 505(2) of IPC. Hence this petition is filed by accused for quashing of the proceedings registered against him.
2. I have heard the arguments of Sri Ashok Haranahalli, learned Senior Counsel appearing for petitioner; learned HCGP appearing for the Respondent No.1 - State and Sri S. Balkrishna, learned counsel appearing for Respondent No.2. It would be apt and appropriate to note at this juncture itself that even before notice could be issued to 2nd respondent, the learned counsel has entered appearance, which was recorded on 4.1.2019, as such question of issuing fresh notice to 2nd respondent did not arise and as such I have heard the arguments advanced by Mr. Balakrishna for Respondent No.2.
3. It is the contention of Sri Ashok Haranahalli, learned Senior Counsel appearing on behalf of the petitioner that reading of the complaint filed by the 2nd respondent would not disclose any of the ingredients for the offence under Section 153A of IPC and statements made by the petitioner in the programme in question do not indicate the intention on the part of the petitioner to incite violence amongst the communities and it is a sine qua non for accused being charged with for invoking Section 153A of IPC. He would also submit when there is no mens rea on the part of petitioner, which also cannot be attributed by a bare reading of the complaint, continuation of proceedings against petitioner would be abuse of process of law and it would curtail his right of freedom of free speech as envisaged under Article 19 of the Constitution of India and as such proceedings initiated against petitioner is liable to be quashed. He would elaborate his submission by contending that Section 505(2) of IPC has no application to the facts of the case and even if allegations made in the complaint are taken at their face value, it would not disclose primary ingredients being attracted for invoking said provisions and statements made by the petitioner in the programme also do not even suggest that he has made any such statements with intent to hurt the religious sentiments of any community, muchless Muslim Community. He would also add that even otherwise, petitioner has immediately issued an apology to anyone who may have been hurt by his statements either directly or indirectly, as such invoking provisions of Sections 153A and 505(2) of IPC does not arise. Hence, he prays for quashing of the proceeding by allowing the petition. In support of his submissions, he has relied upon the following judgments:
1. (2007)5 SCC 1 : MANZAR SAYEED KHAN vs. STATE OF MAHARASHTRA 2. (1997)7 SCC 431 : BILAL AHMED KALOO vs. STATE OF A.P.
4. Learned HCGP appearing for the State would support the action initiated by the State and contends that investigation will have to be held to find out as to whether there is truth and during the course of such investigation, it will be examined as to whether such statements which purportedly have been made by the petitioner could have hurt the sentiments of section of the community of people so as to proceed against the petitioner and at the stage of investigation, this Court should not stifle the investigation by quashing the proceedings.
5. Sri Balakrishna, learned counsel appearing for 2nd respondent - complainant would contend that entire programme aired in the TV news channel on 27.12.2018 would clearly indicate that with an intention to promote enmity, hatredness and ill-will between different religious groups, such provocative statements have been made by petitioner and it is prejudicial to maintenance of harmony in the Society and as such investigation has to be proceeded not only to investigate as to the intention of such statements having been made but also to ascertain all such persons who are responsible for conducting or airing the programme so as to punish such of those persons, who indulge in bringing about disharmony in the society. He would elaborate his submission by contending that hate speech made by petitioner which is likely to cause distress or offend either an individual, class of individuals or group of individuals or a community on the basis of their association with a particular community would incite hostility amongst two groups and as such the jurisdictional Police have rightly registered an FIR against petitioner and it has to reach its logical end, which can happen only after investigation is concluded and hence he has prayed for dismissal of the petition. He would rely upon the scrolls and visuals which were appearing in the said programme to contend that such statements are blasphemy and xenophobia utterances which are per se creating ill-will and hatredness between two communities and as such the continuation of investigation is a must, which can only lead to unearthing the truth and by relying upon the following judgments, he prays for dismissal of the petition.
1. (2006)6 SCC 728 : STATE OF KARNATAKA AND ANOTHER vs. PASTOR P. RAJU 2. (2017)2 SCC 779 : STATE OF TELANGANA vs. HABIB ABDULLAH JEELANI AND OTHERS 3. Law Commission of India Report No.267 of March- 2017 with reference to recommendation regarding Hate speech.
6. Having heard the learned advocates appearing for the parties and on perusal of the records, at the outset it requires to be noticed that petitioner has invoked extraordinary jurisdiction of this Court for quashing of the FIR registered against him for the offences punishable under Sections 153A and 505(2) of IPC. The inherent jurisdiction of the High Court is not conferred by a statute but has been saved under Section 482 Cr.PC. Hon’ble Apex Court in the case of Krishnan v. Krishnaveni reported (1997)4 SCC 241 has held that it is, thus, difficult to conceive that jurisdiction of the High Court would be held to be barred only because of other alternate remedies are being available. There cannot be any dispute with regard to the proposition that moment the process is issued or ordered to be issued, the provisions of Section 482 of Code can be resorted to. This view is also fortified by the law laid down by the Hon’ble Apex Court in the case of Adalat Prasad v. Rooplal Jindal reported in (2004)7 SCC 338. It is also to be held that jurisdiction under Section 482 of Code has to be exercised with great care and circumspection. It is to be noted that in a matter which calls for exercise of jurisdiction, this Court would not examine the material placed before it in a superficial manner. In other words the continuation of the proceedings against an accused if found to be abuse of process of law, this Court can definitely interfere under Section 482 of Cr.PC to quash such proceedings. Yet other contingencies which would arise for this Court to exercise the jurisdiction would be (a) where allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in its entirety, which do not prima facie constitute any offence or make out a case against the accused; (b) where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officer under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (c) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. In fact Hon’ble Apex Court in the case of State of Haryana and others v. Bhajanlal and others reported in 1992 Supp (1) SCC 335 has given categories of cases by way of illustration wherein jurisdiction under section 482 of the Cr.P.C. can be exercised.
7. Keeping these principles in mind, the facts of the instant case will have to be examined. It is not in dispute that petitioner herein had hosted or anchored a debate in the Kannada Suvarna news channel on 27.12.2018 known and called “Left, Right & Centre with Ajit ”, wherein Panelists were also present, apart from securing the presence of others to participate in the programme through digital appearance or through telephonic conversation. The bone of contention in respect of the said programme conducted on 27.12.2018 which purportedly hurt the sentiments of 2nd respondent – complainant or the community to which he belonged is that questions posed by the anchor to the Panelists had hurt the sentiments of the complainant and Muslim population across the globe, who is respected with reverence namely Prophet Mohammad and anchor had used intemperate language, words and expression in the said programme which had hurt their sentiments. It is also alleged that such uttering amounted to blasphemy and it would lead to communal disturbance and harmony amongst various groups in the Society being at peril on account of such statements, petitioner is to be proceeded for having committed offences under Sections 153A and 505(2) of IPC.
8. In the light of aforestated facts, it would be apt and appropriate at this juncture to extract the allegations made in the complaint dated 31.12.2018, which reads as under:
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English translation:
“........Anchor of the programme Ajith Hanumakkanavar during panel discussion states ‘no one is above being questioned’ or ‘everyone can be questioned’ means, you would select to question only those persons even if questioned would cause less harm. You do not have courage to question the person who questions Rama. Person at the age of 53 years get married to a 6 year old girl and develops physical relationship when she became 9 year old, resulting in sexual abuse of child is not questioned as you dare not. Mr.Maheshchandra Gurugale, you are aware of the dangerous path, knowing well that by abusing and hurting religious sentiments of such religion which causes less danger, you select them and hurt them. You will not question or go after those persons whom you know if being hurt would throw bomb on the house. On these lines, inciting words are spoken.
The Anchor of the programme Ajith Hanumakkanavar has used ill temperate language against Prophet Mohammad who is respected and revered by Muslims of this country and across the world. By this Act, I am personally hurt and on account of attempting to bring about disharmony between two religions and on account of bad language used against Prophet Mohammad and Islam religion by hurting sentiments of Muslims as also the religious sentiments ”
9. According to 2nd respondent as well as the prosecution, above statement made by petitioner – accused would attract provisions of Sections 153A and 505(2) of IPC. In that view of the matter, said provisions are extracted herein below for immediate reference.
“Section-153A: 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 tranquility, [or] (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.
Offences committed in place of worship, etc.,- (2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly enlarged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.
Section-505(2): Statements creating or promoting enmity, hatred or ill-will between classes.—Whoever makes, publishes or circulates any statement or report containing rumour or alarming news with intent to create or promote, or which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, shall be punished with imprisonment which may extend to three years, or with fine, or with both.”
10. The interpretation of expression of the words occurring in Section 153A has been considered by the Hon’ble Apex court in the case of Bilal Ahmed Kaloo v. State of A.P. reported in (1997)7 SCC 431, wherein the prosecution had proceeded against the said accused for having made statements or spreading the news that Kashmiri Muslims were being subjected to Atrocities by the Indian Army personnel, would attract Sections 153-A and 505(2) of IPC and while examining the correctness and legality of the judgment of conviction passed by trial Court as affirmed by the High Court, it came to be held that common ingredient in both the offences under Sections 153-A and 505(2) of IPC is promoting feeling of enmity, hatred or ill will between different religious or racial or linguistic or regional groups or castes or communities and after referring to the judgment in the matter of Balwant Singh v. State of Punjab reported in (1995)3 SCC 214, it came to be held in unequivocal terms that ‘mens rea’ is an equally necessary postulate for the offence under Section 505(2) as could be discerned from the words or expression occurring in Section 505(2) of IPC. Thus, while upsetting the findings of the trial Court and the High Court and noticing that common feature in both Sections 153-A and 505(2) of IPC being promotion of feeling of enmity, hatred or ill will “between different” religious or racial or linguistic or regional groups or castes and communities, held that at least two such groups or communities should be involved. It has been further held that merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of these two sections viz., 153-A or 505(2) of IPC.
11. In Manzar Sayeed Khan v. State of Maharashtra reported in (2007)5 SCC 1 Hon’ble Apex Court held that intention of the maker of statement has to be judged primarily by the language and the circumstances and the matter complained of has to be read as a whole.
12. By referring to Ramesh Vs. Union of India reported in AIR 1988 SC 775 wherein the observations of the High Court of Nagaland in the case of Bhagwati Charan Shukla Vs. Provincial Government reported in AIR 1947 Nagaland 1 were made, wherein it came to be observed:
“….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 clapham omnibus”.
It is in this background the expression or the words which are said to have been uttered by petitioner during the course of programme aired on television will have to be examined.
13. It is no doubt true, when a complaint is lodged under Section 154 of Cr.P.C., registration of FIR is mandatory, if Information given to police discloses commission of a cognizable offence. It is also no doubt true as to whether there is a cognizable offence or not would not be within the domain of investigation officer or the jurisdictional police.
14. However, mere allegation in the complaint of a cognizable offence alleged to have been committed by the accused by itself would not be a sufficient ground for the registration of FIR. Even if so registered, this Court in exercise of power under Section 482 of Cr.P.C. would not hesitate to exercise the power or would not refrain from interfering. In situation where ingredients of cognizable offence is not disclosed from the complaint, proceeding further with the proceedings from the point of view of a prudent person would not call for then continuation of such proceedings obviously would be curtailing the right of the accused and it would be an abuse of process of law.
15. In the light of allegations made in the complaint having been already extracted hereinabove and analysis of the case law as discussed above when read together, it would disclose that petitioner during the course of conducting the program had posed question to the Panelists who had participated in the said programme for eliciting their views and there has been no mens rea present in either inciting a particular community, caste or religion against another. An omnibus statement expressing two different views to enable the Penalists to answer or express their views, by itself would not amount to blasphemy, as sought to be alleged by the complainant i.e., second respondent. During the course of such programme, without referring to any particular caste or community statements are made or express both the views calling upon the Penalists to air their views would not attract the provision of either Section 153A or Section 505(2) of the Indian Penal Code. In fact petitioner in his preface to the programme
and in the midst of the programme has clearly stated “AiÀÀÀÀiÁgÀÀÀÀÄ
PÀÀÀÀÆqÀÀÀÀ ¥ÀÀÀÀæ±ÁßwÃvÀÀÀÀgÀÀÀÀ®èèèè DzÀÀÀÀgÉÉÉÉ AiÀÀÀÀiÁgÀÀÀÀ£ÀÀÀÀÄß ¥ÀÀÀÀæ±ÉÉÉÉߪÀÀÀÀiÁqÀÀÀÀ®Ä DAiÉÉÉÉÄÌÌÌÌ ªÀÀÀÀiÁqÀÀÀÀÄwÛÃj” “No one is above being questioned” or “everyone can be questioned” and “whom you choose to question”. It is further stated by the anchor namely, petitioner herein that “selectively it has been chosen to question the acts”, which per se by itself would not amount to inciting to create communal disharmony. In fact, a plain reading of the complaint dated 31.12.2018 at Annexure ‘A’ would not disclose that any particular community having been referred to or any person belonging to a particular community having been referred to. However, on the other hand, complainant-respondent No.2 is attempting to draw inference that it is referable to particular person or sect or community.
16. At this juncture itself, it would be apt and appropriate to note that freedom of speech and expression as provided under Article 19(1)(a) of the Constitution means right to express one’s views and opinions freely, by word or mouth, writing, printing, picture or by electronic media, or in any other manner addressed to the eyes or the ears. It would thus include not only freedom of the press, but also freedom of expression of one’s ideas by any visible representation, such as by gestures and the like.
Expression, naturally, presupposes there is a second party to whom the ideas are expressed or communicated. In short, freedom of expression includes the freedom of preparation of ideas, their publication and circulation and the right to answer the criticism levelled against such use, the right to acquire and import ideas and information about matters of common interest. However, the right to freedom of speech and expression cannot raise above national interest and the interest of the society, which in another name can be called and regarded as “interest of general public”.
17. Sub-Article (2) of Article 19 of the Constitution of India empowers the State from making any law in so far as such law imposing reasonable restriction on the exercise of the right conferred by clause (a) of sub-Article (1) of Article 19 of the Constitution, which would be in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign states etc., In fact, Hon’ble Apex Court in the case of Venkateshwara Vs. State of Tamil Nadu reported in AIR 1983 SC 631 vide paragraph 20 has held that Articles 14, 19 and 21 are not mutually exclusive and it is further held that freedom given to citizens by Article 19 are further sought to be guaranteed by Articles 20, 21 and 22 in particular. While examining action resulting in deprivation of such liberty of any person, guaranteed under Article 19(1)(a) of the Constitution, the limitations if any imposed will have to be considered or examined with reference to other fundamental rights and this will have to be borne in mind also.
18. Keeping this principle in mind and at the cost of repetition, when material on record are perused or examined, as noticed hereinabove, questions posed by the petitioner during the course of panel discussion held on 27.12.2018, it cannot be held as the provisions of Section 153-A or 505(2) of IPC having been attracted and even if they are uncontroverted, allegations made in the complaint if taken at its face value and accepted in its entirety, it would not constitute the alleged offences or make out a case against the accused justifying any sort of investigation by a police officer and as such this Court is of the considered view that proceeding with the investigation in the instant case would be abuse of process of law and it would not be out of place to notice at this juncture itself that with a view to curtail the right guaranteed under Article 19(1((a) of the Constitution, such complaint has been filed.
19. Hence, this Court is of the considered view that proceedings initiated against petitioner cannot be allowed to be continued and if continued it could be abuse of process of law. In the instant case neither allegations made in the complaint nor the programme which has been aired, which is also partially seen by this Court in open Court in the presence of the learned Advocates is of the view that statement made by accused would not constitute any offence or said statement being caustic or unpleasantary or it would have incited communal disharmony. In fact, freedom of speech has always been considered to be the quintessence of every democracy. The doctrine of free speech has evolved as a bulwark against state’s power to regulate speech. In fact, Law Commission of India in its recommendation-2017 on the Impact of Hate Speech on Freedom of Expression has observed to the following effect:
4.5 Free speech has always been considered to be the quintessence of every democracy. The doctrine of free speech has evolved as a bulwark against state’s power to regulate speech. The liberal doctrine was a measure against the undemocratic power of the state. The freedom of expression was one of the core freedoms that were incorporated in the Bill of Human Rights. The greater value accorded to the expression, in the scheme of rights, explains the reluctance of the law makers and judiciary in creating exceptions that may curtail the spirit of this freedom. Perhaps, this is the reason behind the reluctance in defining hate speech.
20. Before concluding, this Court would like to appreciate the valuable assistance rendered by Sri.S.Balakrishnan, learned counsel appearing for the respondent No.2 who by his erudite arguments and also placing on record the report of the Law Commission wherein after analyzing the various case laws and the impact of any hate speech on the freedom of expression envisaged under Article 19(1)(a) of the Constitution has been reviewed by the Law Commission.
For the myriad reasons afore-stated, this Court is of the considered view that petition ought to succeed and I proceed to pass the following:
ORDER (i) Criminal Petition is allowed.
(ii) Proceedings registered in Crime No.292/2018 against petitioner for offences under Sections 153A and Section 505(2) IPC by Mangaluru South City, Mangaluru-Annexure ‘B’, which proceedings are pending on the file of JMFC-II Court, Mangaluru is hereby quashed and petitioner is acquitted of the said offences.
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