The Bombay High Court has quashed two FIRs filed against Congress Party worker Sandeep Kudale for making remarks against minister of Higher and Technical Education, Chandrakant Patil (BJP). Kudale was arrested in December 2022 and kept in custody for 2 days.
A bench of Justices Prithviraj K Chavan and Revati Mohite Dere, safeguarding Kudale’s right to freedom of speech and expression, held that the comments made by Kudale may have been distasteful but do not warrant his arrest. The bench also cautioned the police to apply their mind before registering FIRs and making arrests. The court also ordered that Rs. 25,000 be paid to the petitioner from the salary of the police personnel who registered the FIR.
Kudale had recorded video while standing in front of Patil’s home as he had allegedly made comments against Dr BR Ambedkar and Jotiba Phule. He criticised the statements of Patil and said, “beggars like you will never understand the might of (Jotiba) Phule.”
The offences invoked against him under both FIRs were under sections 153A (1)(a) and (b) [Promoting enmity between different groups on ground of religion, race, place of birth etc] and 505(2) [Statements creating or promoting enmity, hatred or ill-will between classes] of the IPC
Appearing for the petitioner, Subodh Desai submitted that the FIRs are politically motivated, lodged with the sole intent of harassing and browbeating the petitioner, who is a member of the Congress Party. He further submitted that he has been falsely implicated only because he questioned the statement of a sitting Cabinet Minister of the State.
The court cited Manzar Sayeed Khan v. State of Maharashtra & Anr. (2007) 5 SCC 1 whereby the apex court had held,” 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 and the prosecution has to prove prima facie the existence of mens rea on the part of the accused” (Para 16)
In Balwant Singh & Anr. v. State of Punjab (1995) 3 SCC 214 where appellants had raised slogans of “Khalistan Zindabad” after assassination of Indir Gandhi, the court held that “only where the written or spoken words have the tendency or intention of creating public disorder or disturbance of law and order or affect public tranquility, that the law needs to step in to prevent such an activity” (Para 9)
In Bilal Ahmed Kaloo v. State of Andhra Pradesh (1997) 7 SCC 431 the apex court was considering whether section 153A and 505(2) can be invoked against persons spreading news that Indian army was committing atrocities against Kashmiri Muslims, the court held, “The common feature in both sections 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. 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.” (Para15)
Findings of the Court
On the basis of the judgements relied upon the court reached the following findings:
(1) It is not an absolute proposition, that one must wait for investigation to be completed before an FIR can be quashed under Section 482 Cr.PC, as the same would depend on the facts and circumstances of each case;
(2) The intention of the accused must be judged on the basis of the words used by the accused along with the surrounding circumstances;
(3) The statement in question on the basis of which the FIR has been registered against the accused must be judged on the basis of what reasonable and strong minded persons will think of the statement, and not on the basis of the views of hypersensitive persons who smell danger in every hostile point of view;
(4) In order to constitute an offence under Section 153A of the IPC, two communities must be involved. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract Section 153A;
(5) The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A of IPC and prosecution has to prove prima facie the existence of mens rea on the part of the accused;
(6) An influential person such as “top government or executive functionary, opposition leader, political or social leader of following or a credible anchor on a T.V. show” carries more credibility and has to exercise his right to free speech with more restraint, as his/her speech will be taken more seriously than that of a “common person on the street”;
(7) A citizen or even an influential person is under no obligation to avoid a controversial or sensitive topic. Even expressing an extreme opinion in a given case does not amount to hate speech;
(8) The Apex Court has reiterated the test of imminence in Amish Devgan’s case by holding that the likelihood of harm arising out of the accused’s speech must not be remote, conjectural or far-fetched.
Observations by the Bombay HC
The court concluded that no offence was made out against the petitioner. As per the court, even if we take the contents of the video as it stands, no offences as alleged are made out against the petitioner, in both the aforesaid petitions.
“By no stretch of imagination, can it be said, that by the said words, the petitioner, even remotely promoted or attempted to promote, on the grounds of religion, race, place of birth, residence, language, caste or community or on any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religions, racial, language or regional groups of caste and communities. Nor can it be said that the petitioner by the said utterances, committed any act prejudicial to the maintenance of harmony between different religions, racial, language or regional groups or castes or communities, which would disturb or likely to disturb public tranquillity” (Para 18)
Further, considering the contention of the Advocate General that the act of the petitioner was likely to disturb public tranquillity, the court held that any activity carried out by a group of individuals which results in disruption of peace in the society, is referred to as an offence against public tranquillity. And in this case, there was no unlawful assembly, rioting, affray, etc.
The court further held that it does not appear that the video was made with any mala fide intention nor does it appear that he had the intention to promote hatred or enmity or to create law and order issues. “The comments would have to be weighed and considered in the context of what provoked the petitioner to make the said comments,” the court said (Para 20).
Making a remark language used in the video of the petitioner, the court said, “The language i.e. one of the words used by the petitioner in one of the videos, at the highest, can be said to be distasteful, but certainly not warranting registration of the FIR, much less, petitioner’s arrest.” The court opined that the police cannot invoke section 153A so lightly. (Para 20)
The court also emphasized upon right to freedom of speech and expression under Article 19(1) (a) and said that the same is “valuable right and is the backbone of a healthy and vibrant democracy”
“In a way, it enshrines the principle of “liberty of thought and expression” given in the Preamble. The petitioner, as revealed from the contents of the FIR, had only expressed his views/opinion/dissent, pursuant to what the Minister said. The act of the petitioner was well within his right to express his opinion, as guaranteed by the Constitution. Merely because the petitioner’s comments hurt the complainant’s sensibilities, was not a ground for the police to register the FIRs, much less arrest him.” (Para 21)
The court noted that despite there being no prima facie offence against him, the petitioner was kept in custody for 2 days. Cautioning the police against using these sections lightly, the court said,
“The police, before arresting, must first apply their mind, as to whether any offence is made out or not, as an arrest visits serious consequences on the person arrested. The offences alleged have serious connotations/ramification and the police have to be mindful of the same. Invocation of the said sections has serious repercussions not only on that person’s life, but also his family life, causes incalculable harm to one’s reputation and even career. It cannot and must not be lightly invoked.”(Para 22)
Further stressing upon right of a person to express one’s views and pointing to unnecessary registration of FIRs, the court said,
“Law cannot be used as a tool or as an instrument of oppression, by registering FIRs, to harass people by preventing/intimidating them, from expressing their views/opinions/dissent, which the Constitution of India, guarantees to them. The right to express one’s views is a protected and cherished right in our democracy and cannot be taken away by imposition of Section 153A of the IPC and by arresting a person as done in the present case. Section 153A cannot be resorted to silence people from expressing their views/opinions/dissent, so long as Article 19(2) is not violated. Cases under Section 153A are on the rise and the onus is on the police/State to ensure that the said provision is not misused by anyone, much less, political parties.” (Para 23)
The court thus quashed both FIRs against the petitioners and having regard to the peculiar facts of the case, directed the State government to pay costs of Rs.25, 000 to the petitioner for his unjustified arrest to be recovered from the salary of the police personnel who registered the FIR. The matter has been posted for hearing on March 30 for recording compliance in payment of costs.