Indian Penal Code, 1860 – Section 153, 153A – Quashing of order to investigate – Promoting enmity – Investigation order by magistrate against Chief Minister of Assam Sri Himanta Biswa Sarma – Matter related to his public speech which is according to Complainant caused disharmony or feelings of enmity, hatred or ill-will towards the Muslim population of Assam. – Quash petition – Held: On reading of the allegations made in the aforesaid Complaint Petition and in the F.I.R., it is crystal clear that each one contains apparently different narration of facts overlapping each other clouding the multifarious allegations generated therein, which cannot be construed to have disclosed any cognizable offence to the police, requiring to be mandatorily registered. No offence made out – Investigation order Quashed. (Para 28)
A perusal of the above penal provisions, it may be said that to make out a case under Section 153 of the IPC, the ingredients to be established are (i) that the accused did an act, which was illegal; (ii) that he gave provocation to others by such act; (iii) that he did so malignantly or wantonly; and (iv) that he did so with the intention that such provocation will cause the offence of rioting or knowing it to be likely that such provocation will cause the offence of rioting. The essence of the aforesaid offence is malicious intention to incite one community against another community. On the other hand, Section 153A of the IPC presupposes an intention to cause disorder or incite the people to commit violence. Such intention covers a case where a person by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, disharmony or feeling of enmity, hatred or ill will between different religions, racial language or regional groups or castes or communities or acts prejudicial to the maintenance of harmony or is likely to disturb the public tranquillity. Thus, the gist of the offence is the intention to promote feelings of enmity or hatred between different classes of people. (Para 21)
Reading and analysing the contents of the F.I.R. meticulously as a whole, thus, it is not decipherable as to how the proforma respondent No. 2 provoked any enmity between two communities in absence of clear identification of the purported such communities so as to result in either the offence of ‘rioting’, which is defined in Section 146 of the IPC or promoting any form of enmity between different groups on grounds of religion, race, place of birth, residence, language etc. and prejudicial to maintenance of harmony. Therefore, does the narrative so made by the informant in the F.I.R., Annexure-1, disclose any culpable mental state of the proforma respondent No. 2 behind his alleged public speech apparently derived from widely circulated/published electronic media reports, is punishable under any cognizable penal provisions of law? If one reads the whole undisputed printed script of the speech vide Annexure-6, the answer is certainly negative. (Para 23)
In the case in hand, a comparative approach to the allegations made in the F.I.R. vide Annexure-1, Complaint Petition vide Annexure-4 and the entire speech in vernacular delivered at a public meeting at Morigaon by the proforma respondent No. 2 vide Annexure-6, which is accepted without objection from the side of the respondent No.1, it transpires that there was no any elements constituting the offences under Sections 153/153-A of the IPC or any other cognizable penal offence. In other words, Annexure-6, the whole text of the speech in question did not bear any word or sentence which can be termed as communally inflammatory speech attracting any penal cognizable offence. So, this Court is of the opinion that while passing the aforesaid impugned order, unfortunately, (Para 31)
GAUHATI HIGH COURT
Citation: 2023 STPL(Web) 11 Gauhati
State of Assam And Anr. Vs. Abdul Khaleque
Crl.Pet. 214 of 2022-Decided on 3-8-2023
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