IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 22ND DAY OF JANUARY 2013 2ND MAGHA 193 Crl.MC.No. 3808 of 2012 (A) --------------------------------------- [CRIME NO. 75/2011 OF PANDIKAD POLICE STATION] ............ PETITIONERS/ACCUSED 1 AND 2.------------------------------------------------- 1. SUNIL BABU @ SUNIL, S/O.CHANDRAN, KAKKODAN HOUSE, THIRUVALI AMSOM, NADUVATH P.O., SANTHIGRAMAM, MALAPPURAM.
2. USMAN, AGED 2 YEARS, S/O.ABOOBACKER, MELETHIL HOUSE, CHEMBRASSERY AMSOM, ODOMBATTA, THOOVUR (VIA), MALAPPURAM. BY ADVS.SRI.K.S.MADHUSOODANAN, SRI.THOMAS CHAZHUKKARAN, SRI.M.M.VINOD KUMAR, SRI.P.K.RAKESH KUMAR, SRI.K.S.MIZVER. RESPONDENTS/FORMAL PARTY/COMPLAINANT: ---------------------------------------------------------------------- 1. STATE OF KERALA, TO BE REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ”
031.
2. SUB INSPECTOR OF POLICE, PANDIKKAD POLICE STATION, MALAPPURAM DISTRICT ”
505. BY PUBLIC PROSECUTOR SMT. V.H. JASMINE. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22-01-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. CRL.M.C. NO.3808/2012-A: APPENDIX PETITIONERS' ANNEXURE: ANNEXURE -I: CERTIFIED COPY OF THE F.I.R. IN CRIME NO.75/2011 OF PANDIKKAD POLICE STATION. RESPONDENTS' ANNEXURES: NIL. //TRUE COPY// P.S. TO JUDGE Prv. T.R.RAMACHANDRAN NAIR, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - Crl. M.C.No. 3808 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - - - DATED THIS THE 22nd DAY OF JANUARY, 2013 ORDER
The petitioners are accused 1 and 2 in Crime No.75/2011 of Pandikkad Police Station. The offence alleged is punishable under Section 153-B read with Section 34 I.P.C.
2. The main allegation is that on 4.4.2011 at about 23.30 hours, the second respondent found the petitioners at Pandikkad Grama Panchayat Bus Standing affixing posters containing call to boycot the coming election. The contents of the poster are: " No vote for the masters who have become swollen exploiting the people, irrespective of difference in parties. Don't cast vote; election is not the way to democracy; but revolution by force." They were seized along with some notices with the caption "think it over, shall we to keep the rotten and noxious system by casting and casting our votes".
3. Heard learned counsel for the petitioner and learned Public Prosecutor.
4. It is submitted by the learned counsel for the petitioner that in the light of the judgments of this Court in Aravindan v. State of Kerala (1983 Crl.M.C.No.3808/2012 -2- KLT
193) and Manuel v. State of Kerala (2012 (4) KLT 708), the proceedings are liable to be quashed. It is submitted that in the latter case the same poster published on behalf of an organisation named 'Porattam', was the subject matter of consideration by this Court. Section 153B of the I.P.C. reads as follows: "153B. Imputations, assertions prejudicial to national -integration.-- (1) Whoever, by words either spoken or written or by signs or by visible representations or otherwise.-- (a) makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India, or (b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be deemed or deprived of their rights as citizens of India, or ) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, Crl.M.C.No.3808/2012 -3- language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons, shall be punished with imprisonment which may extend to three years, or with fine, or with both. (2) Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged 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." A reading of the same will show that what is made as an offence are: Imputations and assertions prejudicial to national integration. Sub-section (a) will apply in a case where imputation is made that any class of persons cannot by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India. A reading of the posters will show that the same is not attracted here. The same is the situation as far as sub-sections (b) and (c) also are concerned.
5. In the judgment in Manuel's case (2012 (4) KLT 708), with Crl.M.C.No.3808/2012 -4- regard to the applicability of Section 153 I.P.C., this Court has obsserved as follows: "With respect to the offence under S.153 of the I.P.C. imputed in the case, it need only be stated that the affixing of the poster exhorting for boycotting the election, even if it is objectionable, is not sufficient to show that by such affixture provocation is given to any person for causing the offence of rioting. Howsoever deplorable be the act of affixing the poster, to constitute the offence under S.153 of the I.P.C. over and above the provocation that is likely to give cause for rioting, it has to be shown that the act - affixing of the poster - is illegal." Herein also, it can be seen that the same exhortation has been made in the poster and the contents are identical. What they have sought is to exhort the boycot of the election. Definitely, the same will not attract the offence under Section 153B of the I.P.C.
6. In the decision reported in Aravindan's case (1983 KLT 193), while considering the elements to attract Sections 121A and 124A of the I.P.C., this Court considered the question whether shouting of slogans that the Government can be changed by an armed revolution will be sufficient to attract the offence. It was held as follows: "A slogan that the Government can be changed by an armed Crl.M.C.No.3808/2012 -5- revolution does not mean that there is a conspiracy to change the Government by criminal force. At best it could be said that the petitioners want to educate the people that by force only the Government could be changed." Even though the matter considered therein was in relation to an offence under Sections 121A and 124A, the impact of the same is significant. For all these reasons, the Crl.M.C. is allowed, as none of the offences are made out as against the petitioners. The F.I.R. in Crime No.75/2011 of Pandikkad Police Station will stand quashed. No costs. (T.R.RAMACHANDRAN NAIR, JUDGE) kav/