18 Dec 2022 4:34 AM GMT
Observing that intention to cause disorder or incite people to violence is the sine qua non for the offence under Section 153-A, the Punjab and Haryana High Court has granted bail to Congress Leader Karamjit Singh Gill, who was arrested in August for wearing a t-shirt with picture of 1984 riots-accused Jagdish Tytler at Golden Temple.While the case registered under Section 153-A by...
Observing that intention to cause disorder or incite people to violence is the sine qua non for the offence under Section 153-A, the Punjab and Haryana High Court has granted bail to Congress Leader Karamjit Singh Gill, who was arrested in August for wearing a t-shirt with picture of 1984 riots-accused Jagdish Tytler at Golden Temple.
While the case registered under Section 153-A by Amritsar police accuses Gill of hurting the Sikh sentiments with his actions, Justice Sandeep Moudgil said mere wearing of a T-shirt with a picture "of one on his favorite person with the words 'HAPPY BIRTHDAY TO OUR BELOVED GOD FATHER' ... does not reflect any incriminating material or provocative act on the part of the petitioner to bring the case within the ambit of Section 153-A IPC"
The court said no iota of evidence has come forth even in the challan against the accused with regard to uttering of any word or by any other means which may cause hurt to the feelings of a particular community.
Observing that except wearing of a T-shirt with "a photograph of a leader of his own party", no overt act has been attributed against the accused, the court said there is no material whatsoever even to infer that the petitioner was acting under any pre-oriented plan as alleged or to suggest that by words either spoken or written or by any other means as enumerated under Section 153-A IPC, he incited anyone to create violence or promote communal hatred.
"The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153-A IPC and there is no existence of mens rea for the prosecution to succeed," said the court.
The bench placed reliance on the Supreme Court decisions in Patricia Mukhim v. State of Meghalaya and Others, AIR 2021 SC 1632 and Balwant Singh and Another v. State of Punjab, (1995) 3 SCC 214 in the bail order.
Finding that prima facie no material exists to constitute an offence punishable under Section 153-A IPC, the court said benefit of bail can be extended to the accused. The court also noted that challan has already been filed in the case and the accused has remained in custody for three months and 23 days.
The FIR was registered on August 17 on the basis of the complaint lodged by Sulkhan Singh, Manager, Sach Khand Shri Harmandir Sahib, Shri Darbar Sahib, Amritsar.
As per the FIR, the applicant after taking a dip in the holy water at the Golden Temple "wore a t-shirt having picture of Jagdish Tytler, an accused of 1984 Sikh Genocide," clicked a photograph wearing it and left without paying obeisance.
Senior Counsel Anmol Rattan Sidhu, representing the accused, submitted before the court that the petitioner was implicated on false and baseless allegations in the case.
Relying on the Supreme Court decision in Arnesh Kumar v. State of Bihar; (2014) 8 SCC 273, Sidhu contended that since offences under Sections 153-A IPC Part-I and Part II carried punishments of (i) upto three years or fine or both, and (ii) punishment of upto five years and fine, respectively; notice under Section 41A CrPC should have been served and opportunity should have been given to the applicant to join the investigation.
Calling the FIR being politically motivated, Sidhu also contended that offence under Section 153A was not made out as none of the ingredients laid therein were met, not even prima facie, from the bare language of the FIR.
Senior Counsel P.S. Hundal appearing on behalf of the complainant, on the other hand, contended that Jagdish Tytler was an accused in 1984 Sikh Genocide. The petitioner knowing the fact fully well "deliberately with an intent to hurt the sentiments of Sikhs" wore the T-shirt and after taking a dip in the holy pond clicked his photograph, Hundal submitted. The court was told that such an act of the accused was part of "a well planned conspiracy to disturb the peaceful atmosphere".
Deputy Advocate General Rajiv Verma submitted that the petitioner did not deserve the concession of bail since he had committed a serious offence under Section 153A of the IPC. He submitted that the FIR was filed, not on the basis of mere suspicion, but on the basis of CCTV footage.
"His role was evident from the fact that he was wearing a t-shirt having picture of Jagdish Tytler, prime accused in 1984 Sikh Genocide. Further, he also sent his picture from his mobile phone to some person with the intention to make the same viral," argued the DAG.
Case Title: Karamjit Singh Gill v. State of Punjab
Citation: CRM-M-45796-2022 (O&M)
Coram: Justice Sandeep Moudgil
Citation: 2022 LiveLaw (PH) 328
Click Here To Read/Download the Order