IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 Crl.MC.No. 1452 of 2006 -------------------------------------- CP.88/2005 of JUDL.MAGISTRATE OF FIRST CLASS - I, PARAVUR .................... PETITIONER(S): ACCUSED ------------------------------------------ 1. RAFEEQ, S/O.A.VAHID, POYIKAYIL HOUSE, KOLAVARAKONATHU, MENAMPURA, NAVAYIKULAM VILLAGE. 2. MUNEER, S/O.ABDUL RAHIMAN, VALIYAVILA PUTHEN VEETTIL HOUSE, CHATHAMPARA, MAMAMBUR. BY ADV. SRI.RAJA VIJAYARAGHAVAN SRI.R.RENJITH RESPONDENT(S): COMPLAINANT. ------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.RAVINDRA BABU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.1452 OF 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September 2009 ORDER Petitioner and four others have been charge sheeted by CBCID, Kollam in Crime No.226/CR/98 alleging that they have committed offences punishable under Sections 143, 149, 124(A) and 153(A) IPC in addition to the offence punishable under Section 12 of Press and Registration of Books Act. In fact Parippally police had originally registered Crime No.216/98 against the petitioner in this connection. Later, the CBCID took over the investigation and laid the charge sheet. Petitioners who have been arraigned as accused Nos.1 and 3 in the above case filed this petition under Section 482 of the Code of Criminal Procedure at the time when committal proceedings were in progress before the Judicial Magistrate of First Class, Paravoor in C.P.No.88/05. 2. The charge against the petitioners and the co-accused appears to be that they were found affixing certain posters on the walls of a shop room at Parippally on September 24, 1998 at about 3.30 a.m. The posters, according to the prosecution, contained exhortations like (i) implement Sreekrishna Commission Report (ii) release Maudani immediately. (iii) Bal Thackery is spitting poison (iv) Thackery is Butcher of Mumbai and our Jurisprudence is commendable, etc. etc. Crl.M.C.No.1452 OF 2006 :: 2 :: 3. Sri.Raja Vijayaraghavan, learned counsel for the petitioners, submits that the prosecution launched against the petitioners is wholly misconceived and totally unsustainable for reasons more than one. It is pointed out by learned counsel that the exhortations or statements allegedly found on the posters in question would not warrant prosecution in as much as none of those statements would bring or attempt to bring into hatred or contempt or excite disaffection towards the Government established by law in India, as provided under Section 124A of the Indian Penal Code. Similarly, it cannot be said that the writings in those posters would promote enmity between different groups of people on the ground of religion, race, place of birth, residence, language, etc. They would not cause any disharmony or feeling of hatred or ill-will between different religious groups, as provided under Section 153A IPC. In this context, learned counsel invites my attention to some of the decisions of the apex court and that of this court as well. 4. In Balwant Singh and another v. State of Punjab [AIR 1995 SC 1785], their Lordships of the Supreme Court held that application of Section 124A would be attracted only when the accused brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, by words, either written or spoken, or visible signs or representations, etc. Thus Crl.M.C.No.1452 OF 2006 :: 3 :: where some individuals shouted certain slogans without intention to create disorder, it cannot be said that Section 124A would be attracted. While dealing with Section 153A it was held by their Lordships that the intention to cause disorder or incite people to violence, is the sine qua non of the offence under Section 153A, IPC. 5. In Bilal Ahmed Kaloo v. State of A.P. [(1997) 7 SCC 431], the apex court held that a charge under Section 124 A against the accused cannot be sustained if there was no averment that he had done anything against the Government. The decisive ingredient for establishing the offence of sedition under Section 124 A IPC is the doing of certain acts which would bring the Government established by law in India, into hatred or contempt. 6. In Alavi and others v. State of Kerala [1982 KLT 205], this court held that criticising the present judicial set up or functioning of the Parliament or Legislative Assemblies cannot be considered as bringing into hatred or contempt or exciting or attempting to excite disaffection towards the Government established by law, nor would the slogans alleged to have been shouted by the accused be capable of inciting any class or community or persons to commit any offence. 7. The scope of Section 124 A of the IPC has been restricted to cases in which the speech, writing or other activity of the accused was prejudicial Crl.M.C.No.1452 OF 2006 :: 4 :: to public order or public security as it is only in such cases that it could be said that the attack was directed against the Government established bylaw. 8. In Aravindan v. State of Kerala [1983 KLT 193], this court held that shouting of slogans that the Government can be changed only by an armed revolution would not attract the offence punishable under Section 124A IPC. 9. I have carefully perused the materials available on record including the final report filed by the prosecuting agency. The posters contained only certain demands like implementation of the Commission Report of Justice Sreekrishna, release of Mr.Maudani who, the petitioners claim, is their leader, and also demanding detention of Bal Thackery, the “Sivasena” leader. These demands by themselves would not per se show that they were directed against the Government or they were intended to bring into hatred or contempt the Government established by law in India. It cannot also be said that these exhortations would promote enmity between two religious groups. Every citizen of this country has got freedom of expression. A citizen can freely express his views so long it does not fall within the mischief of an offence punishable under the Indian Penal Code or any other State or Central enactment. Ideally, such expression of views should not hurt the sentiments of others or infringe upon the right of another individual. Freedom of expression shall never work against public Crl.M.C.No.1452 OF 2006 :: 5 :: interest. The right of the citizenry to live in peace and harmony shall never be allowed to be disturbed. 10. Having carefully considered the statements which were allegedly found on the posters, I am satisfied that there is considerable force in the contentions raised by the petitioners that the prosecution launched against them is unsustainable. Keeping in view all facts and circumstances and also the dictum laid down by the apex court in similar matters, I am of the view that the prosecution launched against the petitioner cannot be sustained. Therefore, the proceedings now pending against the petitioners in C.P.No.88 of 2005 on the file of the Judicial Magistrate of First Class, Paravoor are quashed. Criminal M.C. is allowed. (A.K.BASHEER, JUDGE) jes