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Section 124A in The Indian Penal Code
Section 166 in The Indian Penal Code
Section 109 in The Indian Penal Code
Section 4 in The Police-Forces (Restriction of Rights) Act, 1966
Section 120B in The Indian Penal Code

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Karnataka High Court
Sri Shashidhar vs State Of Karnataka on 25 August, 2016
Author: Anand Byrareddy
                            1




       IN THE HIGH COURT OF KARNATAKA AT
                    BENGALURU

     DATED THIS THE 25TH DAY OF AUGUST 2016

                          BEFORE

THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY

         CRIMINAL PETITION No.5075 OF 2016

                  CONNECTED WITH

         CRIMINAL PETITION No.5095 OF 2016

IN CRL.P.No.5075/2016

BETWEEN:

Sri. Shashidhar,
Son of Venugopal Naidu,
Aged about 57 years,
Residing at 1194,
9th 'B' Cross,
Yelahanka New Town,
Bengaluru - 560 064.
                                           ...PETITIONER
(By Shri Ashok Haranahalli,          Senior Advocate for
Shri Sandeep S. Patil, Advocate)

AND:

State of Karnataka,
Yelahanka New Town Police Station,
Bangalore.
                                2




Represented by Public Prosecutor,
High Court of Karnataka,
Bengaluru - 560 001.
                                              ...RESPONDENT
(By Shri A.S.Ponnanna, Additional Advocate General-II for
Shri K.R.Keshav Murthy, S.P.P.II for Respondent/State)
                             *****
       This Criminal Petition is filed under Section 439 code of
Criminal Procedure, 1973, praying to enlarge the petitioner on
bail in Crime No.160/2016 of Yelahanka New Town Police
Station, Bangalore City for the offence punishable under
Sections 166, 109, 120B, 124A of IPC and Section 5 of the
Essential Services Maintenance Act, 1981; Section 4 of Police
(Incitement of Disaffection) Act 1966 and Section 4 of Police
Forces (Restriction of Rights) Act, 1966.

IN CRL.P.No.5095/2016
BETWEEN:

1.    Sri. Basavaraju Korawar,
      Son of Hanumantappa Korawar,
      Aged 39 years,
      Residing at Doddanayakan Koppa,
      Kosugal Plot,
      Vijayanagar,
      Dharwad - 08.

2.    Sri. Gurupadayya,
      Aged about 39 years,
      Son of Revanayya Mathod,
      Residing at Achar Printings,
      Naymathi Road,
      Honnali Taluk,
      Davanagere - 577 004.
                                             ...PETITIONERS
                                3




(By Shri Ashok Haranahalli, Senior              Advocate     for
Shri Venkatesh R.Bhagat, Advocate)

AND:

State by
Yelahanka New Town Police,
Bangalore.
Before this Hon'ble Court
represented by State Public Prosecutor,
High Court Buildings,
Bangalore - 560 001.
                                              ...RESPONDENT
(By Shri A.S.Ponnanna, Additional Advocate General-II for
Shri K.R.Keshav Murthy, S.P.P.II for Respondent/State)
                             *****
       This Criminal Petition is filed under Section 439 code of
Criminal Procedure, 1973, praying to enlarge the petitioners on
bail in Crime No.160/2016 of Yelahanka New Town Police
Station, Bengaluru City for the offence punishable under
Section 5 of Karnataka Essential Services Maintenance Act,
1981 Sections 166, 109, 120B and 124A of IPC, and Section 4
of the Police (Incitement of Disaffection) Act, 1922 and under
Section 4 of Police Forces (Restriction of Rights) Act, 1966.

       These petitions having been heard and reserved on
18.08.2016 and coming on for pronouncement of orders this
day, the Court delivered the following:-


                           ORDER

These petitions are heard and disposed of together as there are some common features in the same. 4

2. It is stated that one, Jayanand, Sub-Inspector, had lodged a complaint with the Yelehanka New Town Police Station, as on 2.6.2016, to the effect that the petitioner in Crl.P 5075/2016, who was an erstwhile police constable dismissed from service, and who had formed an association called 'Akhila Karnataka Police Mahasangha' , was said to be spearheading a movement to instigate the lower rung of the police force to act against the present elected government. That he along with the first of the petitioners in the second of these petitions, Crl.P 5095/2016, and certain other persons, including the second of the petitioners in the said petition, were conspiring to instigate the police force to bring hatred and disaffection against the State Government amongst the general public, with an aim to destabilize and bring down the present government.

It was said to have been claimed that the petitioners had made public speeches, and used the electronic social media such as, Facebook, Whatsapp and so on, to create hatred and excite disaffection against the State Government, among the 5 police force and the public at large. The Petitioner in the first of these petitions, Shashidhar, is said to have a Facebook Account, on which he had posted provocative photographs with captions like ' Sippayee Dungay'. He is said to have addressed messages to the rank and file of the Karnataka Police force to go on a mass leave on 4.6.2016, through out Karnataka State and to join hands in their war against the Government and the Police Department.

It transpires that the State Government, in order to avoid an unwelcome situation, is said to have issued a notification dated 31.5.2016, declaring that the Karnataka State Police Force as an essential service under the Karnataka Essential Services Maintenance Act, 2013. However, it is claimed that this did not deter the petitioners from continuing with their onslaught through the various media to instigate and incite the members of the Police force not to buckle.

It is pursuant to such complaint that the respondent - Police are said to have registered an First Information Report 6 in Crime no.160/2016, for offences punishable under Sections 166, 109, 120B, 124-A of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity), Section 5 of the Essential Services Management Act, 1981, Section 4 of the Police (Incitement to Disaffection) Act, 1966 and Section 4 of the Police Forces (Restriction of Rights) Act, 1966.

The petitioners' applications for bail before the court below have been dismissed.

It is the case of the petitioners that they are clueless as to why they have been apprehended and taken into custody. And hence the present petitions.

3. Shri Ashok Harnahalli, Senior Advocate, appearing for the counsel for the petitioner in Crl.P 5075/2016, would contend that in order to attract Section 124-A of the IPC, there must be an intention to create disorder or to incite people to violence either by words, spoken or written, or by signs, or by visible representation, or otherwise brings or attempts to bring 7 into hatred or contempt, or attempts to excite disaffection towards the government established by law. It is pointed out that the complaint does not indicate that the petitioners had incited people in order to create hatred against the government.

It is contended that in order to invoke Section 109 IPC, it must be demonstrated that there was an offence committed as a consequence of abetment or was committed as a consequence of instigation or in pursuance of a conspiracy or had aided the commission of the offence - to constitute abetment. There is no evidence of any of the ingredients to constitute the offence of abetment.

It is contended that the provisions of the Essential Services Maintenance Act, 1981, the Police (Incitement to Disaffection) Act, 1981 and the Police Forces (Restriction of Rights) Act, 1966 are only applicable to persons who are members of the force of the State. As the same are not applicable to the petitioners, it is inexplicable that the 8 petitioners are taken into custody for the alleged commission of offences under the said Statutes.

Similarly, Section 166 IPC, would apply to a person being a public servant, in that, where a public servant knowingly disobeys any direction of the law with an intention to cause injury to any person, then Section 166 IPC would apply. Even according to the complaint, the petitioners are not serving members of the Police force. Hence, the case against the petitioners is not maintainable.

4. Per contra, the learned Additional Advocate General, Shri A.S.Ponnanna, vehemently opposes the petition and contends that the arrest and confinement of the accused, particularly accused no.1, was found to be imperative to avoid an impending disaster - for if the said accused had succeeded in calling for a state-wide protest by the Police force, by resorting to mass leave and protests by rallies, even for a day, it would have lead to a complete breakdown of law and order through 9 out the State, which may have even lead to the further consequence of the present government itself being destabilized

- to the advantage of rival political parties.

It is emphasized by Shri Ponnanna, that a plain perusal of the content of the public speeches made by accused no.1, the messages and posts on the electronic social media, would clearly demonstrate the virulent campaign embarked upon by the accused to create hatred and disaffection against the State Government, among the Police force and the public in general. If not for the timely action by the State Government in invoking the Karnataka Essential Services Maintenance Act, 2013, in preventing any such precipitative action that was planned for 4.6.2016, the consequences of the petitioner's inflammatory and provocative speeches and messages would have been disastrous.

It is contended that as is evident from the contents of the petitions and the arguments canvassed on behalf of the petitioners, even now it is claimed that the actions of the 10 petitioners are justifiable and that the same cannot be curbed. In which event, if the petitioners are enlarged on bail - there is certain to be a repetition of their anti-government activities thereby escalating the hatred and disaffection sought to be created against the State government. The learned Additional Advocate General hence seeks that the petitions be dismissed in interest of peace and stability in the State.

5. In the light of the above contentions and from a perusal of the material that is made available, including a letter addressed by accused no.1 to the Honourable Chief Justice of the High Court of Karnataka, complaining of illegal arrest and a search and seizure of his personal belongings after terrorizing his wife and children, it is noticed that the most serious offence alleged against the accused is one punishable under Section 124-A of the IPC. And in order to examine whether the acts alleged against the petitioners, particularly, accused no.1, would attract the rigour of the said Section, we may firstly, examine 11 the tenor of the section and the interpretation of the scope and ambit of the said provision, as enunciated by the Supreme Court.

"124A. Sedition Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1- The expression "disaffection" includes disloyalty and all feelings of enmity. Explanation 2- Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3- Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section."

In analysing the scope and ambit of the above said Section, the Apex Court has, in Kedarnath Singh v. State of 12 Bihar, 1962 Supp.(2) SCR 769, held that the said offence, which is generally known as the offence of Sedition, occurs in Chapter VI of the IPC. That this species of offence against the State was not an invention of the British Government in India, but was known in England for centuries. Every State, whatever its form of government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder.

The Apex Court also was of the opinion that they were directly concerned with the question of how far the offence as defined in Section 124-A IPC, was consistent with the fundamental right guaranteed by Article 19(1)(a) of the Constitution of India . While observing that the said right is not an absolute right, but was subject to such reasonable restrictions as would come within the purview of Article 19(2) of the Constitution, which comprised (a) Security of the State, 13

(b) friendly relations with foreign states, (c) public order,

(d) decency or morality. It was expressed that what the Section penalises was any spoken or written words or signs or visible representations, which have the effect of bringing, or which attempt to bring into hatred or contempt or excites or attempts to excite disaffection towards the government established by law. And that the expression "the Government established by law was to be distinguished from the persons for the time being engaged in carrying on the administration. And that "Government established by law " was the visible symbol of the State. The very existence of the State would be in jeopardy if the Government established by law is subverted. And that the continued existence of the Government established by law was an essential condition of the stability of the State. In other words, any written or spoken words, which have implicit in them the idea of subverting the Government by violent means, which are compendiously included in the term "revolution", have been made penal by the Section. But the Section itself 14 indicates that strong words used to express disapprobation of the measures of the 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 feelings which generate the inclination to cause public disorder by acts of violence would not be penal. It is held that 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, without exciting feelings of enmity and disloyalty which imply incitement to public disorder or the use of violence.

It has been held by the Apex Court that if a person makes a very strong speech or uses very vigorous words in a writing directed to a very strong criticism of measures of Government 15 or acts of public officials, the same would be outside the scope of the section. (See: Paragraphs 24 & 25 ) Keeping in view the law as settled in the above decision, which holds the field, let us examine, with reference to the material which is cited, as being incriminating material pointing to the petitioners having committed the offences as alleged, would make out a case against the petitioners.

The court below which has refused to grant bail to the petitioners has referred to the following statements and slogans which were said to have been posted on the Facebook Account of accused no.1.

" ¹¥Á¬ÄzÀAUÉ
1) F ¹¥Á¬ÄzÀAUÉAiÀÄ°è ¥Á¯ÉÆμîÀ®Ä ¨sÀAiÀĪÉÃ? ºÉÃUÁzÀgÀÆ ªÀiÁr F CªÀPÁ±À ©qÀ¨ÃÉ r.
2) ªÉÄïÁ¢üPÁjUÀ¼À ¨sÀAiÀĨÉÃqÀ, ¨sÀAiÀÄ EzÀÝ°è PÀ¥ÀÄà §mÉÖ ªÀÄÄRPÉÌ PÀnÖPÆ É AqÀÄ £ÉêÀiï¥ÉèÃmï QvÀÄºÛ ÁQ F ¥Àw æ ¨sÀl£ÉAiÀÄ°è ¥Á¯ÉÆÎAqÀÄ AiÀıÀ¹éAiÀiÁV ªÀiÁr.
                                    16




         3) zÀ±¢
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            gÀtPÀº¼ À É.

4) AiÀiÁªÀ gÁµÀÖç CxÀªÁ gÁdåzÀ°ègÄÀ ªÀ ¸ÉʤPÀjUÉ ¸ÀjAiÀiÁzÀ ªÉÃvÀ£À ºÁUÀÆ ¸Ë®¨såÀ UÀ¼ÄÀ EgÀĪÀÅ¢®èªÉÇà D gÁdåzÀ°è CgÁdPÀvÉ C¤ªÁAiÀÄðªÁV DgÀA¨sª À ÁUÀÄvÀz Û É.

         5) gÁdå ¥ÉÆðøï F ºÉÆÃgÁl ¥ÉÆðøÀgÀ
            EwºÁ¸Àz° À è       ºÉƸÀ      ªÀÄ£ÀéAvÀgª
                                                    À À£ÄÀ ß
ºÀÄlÄÖºÁPÀ°zÉ, eÉÊ »AzÀ eÉÊ ¥ÉÆðøï.
6) £ÀªÀÄä £Á¼ÉU¼ À ° À £ è À £ÀUÀĪÀ£ÀÄß eÉÆÃ¥Á£À ªÀiÁqÀĪÀ ¥ÉÆðøÀjUÉ «ÄøÀ°gÀ° ºÀÈzÀAiÀÄzÀ MAzÀÄ «ÄrvÀzÀ ºÀgPÀ ,É ¥ÉÆðøÀgÀ ¸ÁªÀÄÆ»PÀ gÀeÉ ¥Àwæ ¨slÀ £É ¢£ÁAPÀ: 4.6.2016".

Further, the counsel for the petitioner himself has produced the following material, under cover of a memorandum dated 17.8.2016 :-

Postings of Shri Shashidhar Venugopal on Face Book "Dear Friends Uniform nalli kappu patti dharisi duty maaduvudu thappaguvudu mattu adakke badalaagi 17 gairu haajaragi hospital OPD padedukolluvudu uttama endu nyayavaadigalu abhipraayapadutare."

Xxx "Dear Parameshwara ji. Your POLICE OFFICERS are spreading rumours of my possible arrest and creating tension and provocation amongst my Police Community members. This is not a good sign considering Law & Order situation. From my end am doing my level best to contain the temperament of my agitated Police Brethren . We as Soldiers are more bothered about the society than you people. Don't ever try to add Political Colour to the ongoing Police Struggle. We are patriots. Dont brand and treat us as TERRORISTS.

If you and your officers would want to take me to Police Custody for the act of standing by the side of AGGRIEVED Police I am not all scared of ARRESTS. This is a battle between Law Breakers & Law Abiders. I leave it to the people to decide on who is right or who is wrong."

xxx "Dear Friends: After issuance of latest circular scaring police personnel some 15% police personnel dejected and frustrated by the acts of superior Police Officers wants to commit suicide & 75-80% wants to 18 fight it out. This is the clear picture emerged after the latest threat issued by the superior Police Officer who went round each police station/ Units / Battalions with scary looks.

I earnestly request the aggrieved and dejected constables not to resort to such acts of attempting to commit suicide. If by any chance any police personnel commits suicide the whole Government has to take blame for abetting suicide. I would like to know your opinion on how to proceed further in the interest of achieving a breackthrough. Please respond.

Dear Friends now it is time for us to counter attack the Ministers & all those IPS Officers & Others who involved in illegal Police Transfers. Lets take up the case to Supreme Court to teach this law breakers a lesson using IPS..."

xxx "Raje athava Dayaa Marana kke Arji sallisuvavara sanke hechchuttide. Sarakaara Policera shavagala mele aadalitha nadesalu horatide ennuvudu Policera abhipraya. Gulaamgirigintha saave lesu embudannu kela Policeru aaydukondiriva maarga. Yaavude kaaranakku aatmahatye Nirdhaara kaigollade horaatada haadiyinda yashassu shadhisi ennuvudu bahuteka policera abhiprayavu aagide. Ene aagalli 19 horaata hattikkalu yaarindalu saadyavilla embuydannu raajyada policeru ee baari torisaliddare. "

xxx "Dear Friends : Undergone the outcome of Chief Ministers Meeting on proposed police strike. It was a disastrous one. Our Police brethren expecting some relief out of the meeting but of no use. He went on issuing threats. Warning and Punitive actions. I never have come across such a Chief Minister in my life. I would like to remind Chief Minsiter that his position as Chief Minister is not permanent.

Next coming to the proposed Police absenteeism on 4-06/2016 by aggrieved Police Personnel I would like to elicit opinion of our Police friends on what course of action do we have to follow in view of our CM's threat. Please confirm to me your views on this.

The State is heading to anarchy under Sh.Siddaramiah. An emergency like situation exists in Police Department. Policemen are being harassed by Ruling Congress Leaders. Political interference has reached all time high. A case in Apex Court on illegal Police transfers is pending against CM. One more fresh case is filed against CM and his 28 Cabinet colleagues in ACB,.

20

Given to understand the gravity of situation that is prevalent in the police Department it is quite but natural for any lower rung Police Personnel to curse the officers and the government for pushing them into such an awkward position. Please revert back and share your opinion on our proposed course of action to be taken in the light of Government's Adamant stand. Talk to me on my mobile phone."

xxx "Dear friends there is a fake account in my dads name which says "please cooperate with the government please do not believe any of it and please share this post so it reaches everyone possible."

xxx "¹¥Á¬ÄzÀAUÉ PÀ£ÁðlPÀ gÁdåzÀåAvÀ"

xxx " Account Inactive This account has been deactivated. Only you can see ªÀĺÉñï PÀĪÀiÁgï on your friends list. You have the option to unfriend ªÀĺÉñï PÀĪÀiÁgï."
21

Mail sent to the Police Commissioner dated 1.6.2016 "To, 1-06-2016 The Police Commissioner Bangalore City Police BANGALORE.

Sub: Request for Grant of Permission to hold peaceful meeting in FREEDOM PARK, Sheshadri Road:- Reg.

On 4-06-2016 between 10am to 1 pm like minded people from all walks of life including Political Party Workers, organisations, and others will assemble in Freedom Park and will hold Meeting in solidarity with aggrieved Policemen. Five member delegation will meet H.E. the Governor to submit Memorandum at Rajbhavan. Please permit us to do peaceful protest. Let me know your reply immediately so as to make proper arrangements for the same, failing which I will be constrained to approach Karnataka High Court.

Thanking you, Yours faithfully"

22

From a perusal of the smattering of material made available, it is evident that accused no.1 has been aggressively espousing the cause of the lower rungs of the police force and the appalling conditions of service under which they function.

There is no indication of the number of members of the association that accused no.1 is said to have formed. There is no indication of the number of 'fans' in the police force who had responded to his call for a mass agitation. It is not evident that accused no.2, who is said to be a police man dismissed from service, and accused no.3, who is said to be the husband of a police woman, being followers of accused no.1 or of having indulged in any such acts in aid of the activity of accused no.1.

It is evident that the postings by accused no.1 on his Facebook Account and possibly on the basis of the Emails generated from a machine belonging to the said accused, that may have been closely monitored, (without authority of law?) it is deduced by the respondents that he was actively inciting 23 members of the police force to apply mass leave and engage in rallies to further their demands. There is no evidence of the entire police force rising in mutiny at the behest of the said accused.

The apprehension expressed by the State of a state of anarchy and disorder on account of the petitioner's campaign is clearly paranoid. In that, if any police man should step out of line on account of the goading and incitement by the petitioner, he is certainly aware that he shall be dealt with an iron hand. The petitioner who seeks to tell the world, by virtue of his having been a member of the police force, of the plight of members of the lower rungs of the police officer ought not to be curbed.

In the above view of the matter, the petitioners shall be enlarged on bail :

a) on the petitioners furnishing a personal bond for a sum of Rs.50,000/- each, and a surety for a like amount, each; 24

b) the accused shall not incite or call for any agitation by the members of the Police force. They shall not also call for any collective action by the police force to do or not to do any act;

c) the petitioners shall not tamper with the evidence or prevail upon the prosecution witnesses in any manner.

d) the petitioners shall attend the court on all dates of hearing and shall co-operate with the Investigating Authority.

(iv) the petitioners shall not leave the jurisdiction of the court below without prior permission.

Sd/-

JUDGE nv*