The Kerala High Court has observed that merely inciting the feelings of one community or group without any reference to any other community or group cannot attract the provisions of section 153A of Indian Penal Code.
Justice Ashok Menon observed thus while granting anticipatory bail to some of the accused allegedly involved in conspiracy which resulted in demolishing a film set constructed at Kalady riverside, depicting a Church, at the precincts of the Mahadeva Temple.
The allegation against Pradeep RS, the General Secretary of Antharashtra Hindu Parishad (A.H.P) was that he had published a post on his Facebook page after the incident admitting his role in the act of demolition by the members of his organisation and justified it. In his bail petition, he submitted that he is innocent and was not even present at the scene of occurrence. He further contended that the Facebook post does not in any way promote enmity between different groups on the grounds of religion as no other religion has been referred to in the post.
The Public Prosecutor opposed the basil pleas contending that the intention of the accused was to poison the minds of Hindus of the locality against the Christians stating that a Church or something resembling a Church has come up in the precincts of Mahadeva temple, which may probably be permanently snatched away by the members of the other religion.
The Judge while considering the bail application also made comments on the maintainability of offences under Sections 153-A and 454 I.P.C. The court said that the essence of the offence under S.153A IPC is promoting enmity between different groups on grounds of religion, race, place of birth, residence etc. and doing acts prejudicial to maintenance of harmony. The court observed:
"Real intention to incite one group or community against another is absolutely essential. It is necessary that at least two groups or communities should be involved. Merely inciting the feelings of one community or group without any reference to any other community or group cannot attract the provisions of S.153A IPC."
The court further observed that the comments made by the accused only refers only to the Mahadeva temple and not permitting such activities of construction within the precincts of the temple. The court added:
"Therefore, prima facie, the offence punishable under S.153-A is not attracted to the facts of the case. (See also Bijumon v. State of Kerala 2018 (4) KHC 73.) At best, the Facebook post would amount to an admission regarding the involvement of the 1st accused as the President of the Ernakulam Division of Bajrang Dal and his supporters."
Dealing with the contention of the accused that the film set is not a house or a place of worship to attract the ingredients of "House-trespass" under Section 442 I.P.C, the judge said:
A reading of the aforesaid provision and in particular the expression "in building used as a place for custody of property", I am of the view that a film set, though a temporary structure, was being used as a place for custody of property like generator, etc; which was allegedly stolen. Since the definition also includes a tent, and does not state that it should be a permanent structure, even a temporary film set would fall within the definition of a house which in this case, can be said to be a structure used for custody of property. Hence, I have no doubts about Section 454 getting attracted in this case.
The court further noted that the accused in these applications do not have any criminal antecedents The fact that the 1st accused has 28 criminal cases against him and that accused of 4 and 7 are also involved in criminal cases may not militate against accused 8, 11 and 12 from claiming a pre-arrest bail, the judge said while granting anticipatory bail with conditions.
Case name: PRADEEP R.S @ HARI PALOD vas STATE OF KERALACase no.: Bail Appl..No.3302 OF 2020Coram: JUSTICE ASHOK MENON Counsel: ADV. VISHNUPRASAD NAIR and Sr.PP C.K .SURESH
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