The Kerala H.C. ruled that S.153A of I.P.C. cannot be attracted where there is a mere incitement of one community, without reference to any other community or group.
Brief facts of the Case
A bail application was filed by accused Nos. 8, 11 and 12 for allegedly committing offences under Ss. 120B, 143, 144, 147, 148, 153A, 454, 380 and 427 r/w. S. 149 of I.P.C., S. 5 of Kerala Prevention of Destruction to Private Property and Payment of Compensation Act, and S. 4(2), (d) and (f) of Kerala Epidemic Ordinance, 2020.
The applicant, the 8th accused Pradeep R.S is the General Secretary of Antharashtra Hindu Parishad (A.H.P.). He had published a video on his Facebook post, admitting his role and justifying the demotion of a film set at Kalady. The set depicted a Church and was constructed at the precincts of the Mahadeva Temple. The 11th accused submitted that he
was implicated without any basis whatsoever. The 12th accused stated that he was embroiled in the crime on seeing the crowd and going to check the commotion. All 3 of them had no criminal antecedents and sought for pre-arrest bail.
Submissions by the Applicants
In the bail application, the 8th accused submitted that he was not even present at the scene of incidence. He also contended that his Facebook post does not in any way incite or promote enmity between different groups. Mainly because the post does not refer to
any other religion. It does not spread any enmity on the grounds of religion. Further, the council also submitted that no Christians of the locality or anywhere else had raised any objection. The demolished structure was not a church, but only a replica of a church.
The applicant also contended that S.442 is not attracted as a film set is not a house or a place of worship. Thus, ingredients of “house-trespass” are not fulfilled.
Submissions by the Public Prosecutor
The Public Prosecutor stated that the production unit had constructed with due permission from the temple committee. A considerable amount of money was spent on constructing the set. The unit had kept expensive things, like generators, inside the set. It was contended that the intention of the accused was to “poison” the minds of Hindus of the locality against Christians. His statement that a structure of a church has come up in the precincts of Mahadeva Temple may probably lead to the impression that the other religion is snatching away their land.
The court iterated that to attract S.153A, real intention to incite one group or community against another is essential. Thus, at least two groups or communities must be involved. Merely inciting feelings of one community without any reference to any other community cannot attract S. 153A. Furthermore, the court noted that the comments made by the accused only refers to the Mahadeva temple. It cannot be considered to be inciting enmity between two religions per se.
However, the court stated that the Facebook post could be considered to be an admission of involvement of the 1st accused in the demolition of the structure. Concerning the contention on S. 442, the court observed that a film set. However, a temporary structure was being used as a place of custody of property like generator etc. which was allegedly stolen. Since the definition does not mandate it to be a permanent structure, even a temporary film set would fall within the definition. Therefore, an offence under S. 454 is meted out.
The court acknowledged that the 1st, fourth and seventh accused have numerous criminal cases against them even in the past. However, it does not militate against the applicants for claiming pre-arrest bail. The offence under S. 454 IPC, attracts a punishment of only up to 3 years of imprisonment. The court found no reasons not to believe that the applicants will not cooperate with the investigation. Hence, custodial interrogation may not be necessary. Thus, the court ruled that they are entitled to anticipatory bail.
The court, therefore, issued a conditional bail to the applicants.
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