FIVE POINTERS OF THE DEVELOPMENT
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Anticipatory bail is given to the film-maker
The Kerala High Court on Friday granted anticipatory bail to the filmmaker Aisha Sultana in the sedition case registered against her for a remark she made against Lakshadweep administrator Praful Khoda Patel.
She is accused of sedition, an offence punishable under Section 124-A and for making imputations, assertions prejudicial to the National integration, an offence punishable under Section 153-B of the Indian Penal Code.
The Sub Inspector of Police, Kavaratti has issued, a notice under Section 41 A Cr.P.C. to her directing her to appear before the Police Headquarters at Kavaratti, Lakshadweep on June 20, 2021, for interrogation. The applicant apprehends imminent arrest and detention, and therefore, seeks pre-arrest bail.
As per the verdict of the court-prima facie, the offences alleged by the prosecution are not attractive. The filmaker has no criminal antecedents. She is not likely to flee from justice. The learned Senior Counsel has stated that the applicant has expressed her regret about the use of the words ‘bio weapon‘. Custodial interrogation of the applicant and her incarceration in prison, particularly in these pandemic times may not be required. The prosecution has also not expressed any fear of her fleeing from justice or not cooperating with the investigation. Nor has the prosecution expressed its intention to subject the applicant to custodial interrogation. There is no evidence that can be tampered with or witnesses to be influenced or intimidated. Consequent to the granting of interim anticipatory bail, the applicant was directed to appear before the investigating officer for interrogation, and there is no report that she has not complied with that direction of this court. Hence, the application is allowed and the interim anticipatory bail is made absolute.
In the event of her arrest, the applicant shall be released on bail on the execution of bond for 50,000/- (Rupees fifty thousand ₹ only) with two solvent sureties each for a like amount to the satisfaction of the arresting officer and subject to the conditions under Section 438 (2) Cr.P.C.
2. The Issue against the filmmaker
On June 11, 2021, Lakshadweep Police had registered an FIR against Sultana on the basis of a complaint filed by BJP’s Lakshadweep unit State President Abdul Khader. He alleged that Sultana had spread false information about the spread of Covid-19 in the islands and that her remarks on a TV show regarding the new Lakshadweep administrator Praful Patel, amounted to an ‘anti-national’ act. Lakshadweep president C Abdul Khader Haji, who had alleged that Sultana criticised the Centre and called Patel a “bioweapon” during a debate on a Malayalam news channel about the ongoing political crisis in Lakshadweep.
3. The arguments of both sides
The learned CGSC refers to the decision of the Apex Court in the Vinod Dua case to argue that it is not necessary that there must be a riotous situation following the words spoken by the accused. It is enough if the words were spoken have the tendency to create disorder or disturbance of public peace by resort to violence.
The learned counsel also relied on the decision in Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) vs. Arun Kumar Bajoria [(1998) 1 SCC 52] to point out that it is not the function of the Court to monitor investigation processes so long as such investigation does not transgress any provision of law. It is also argued that the applicant seeking anticipatory bail under the provisions of Section 438 Cr. P.C must show that he has ‘reason to believe that he may be arrested in a non-bailable offence and that the expression shows that applicant may be arrested must be founded on reasonable grounds and that an order under Section 438 is a device to secure the individual’s liberty and it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. In support of this argument, the learned CGSC relies on another decision, Vaman Narain Ghiya v. State of Rajasthan [(2009) 2 SCC 281].
The following Kedar Nath judgment was cited:
“In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term “revolution,” have been made penal by the section in question. But the section has taken care to indicate clearly that strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means would not come within the section. Similarly, comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feeling which generates the inclination to cause public disorder by acts of violence, would not be penal. In other words, disloyalty to Government established by law is not the same thing as commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means, that is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence.” (emphasis supplied)”
4. Court verdict
The statement made by the applicant in the discussion will have to be taken in its entirety and words cannot be taken in isolation to suggest a motive. After having considered the submissions made on both sides, and also the transcript of the discussion, it would suffice to say that prima facie, the filmmaker did not have a malicious motive to subvert the Government established by law by merely using the strong word ‘bio weapon’ to express her vehemence in disapproval of the subject under discussion. Her intention is explicitly in criticism of the modification of the SOP, introduced by the Administrator, forgoing the mandatory provision of subjecting the persons entering the island to quarantine. This allegedly led to an exponential rise in the number of Covid 19 cases on the island. The decisive ingredient for establishing the offence of sedition under S.124-A IPC is the doing of certain acts which would bring the Government established by law in India into hatred or contempt etc. In this case, there is not even a suggestion that the applicant did anything as such against the Government of India.
5. On the issue of spreading hatred
The other penal provision incorporated in the F.I.R against the applicant is an offence under S.153A IPC., which after the amendment reads thus:
“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.- The ingredient of S.153A is promoting a feeling of enmity, hatred or ill will between different religious or racial or linguistic or regional groups and covers a case where a person by “words, either spoken or written, or by signs or by visible representations” promotes or attempts to promote such feeling among two distinct groups. The Apex Court has in Balwant Singh v. State of Punjab [(1995 (3) SCC 214] held that mens rea is a necessary ingredient for the offence under S.153A. Considering the scope of Sections 153-A and 505 of the I.P.C., the Apex Court has in Bilal Ahmed Kaloo v. State of A. P [1997 KHC 1044 : 1997 (7) SCC 431], held thus:
“The common feature in both sections being the promotion of feeling of enmity, hatred or ill will “between different” religious or racial or language 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.”
In the instant case, the applicant has opposed the newly introduced reforms by the Administrator and has sworn allegiance to the people of Lakshadweep in their protest to the reforms. There is no apparent indication in her statement, which amounts to imputations or assertions prejudicial to the national interest, nor does it propagate any class of persons against another group of persons. It is therefore doubtful whether the penal provisions of S.153-A would be attracted in this case.
This is an application for anticipatory bail and not a petition for quashing the proceedings under Section 482 Cr.P.C. Neither is this court finally deciding the prosecution case on its merits.
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