Andhra Pradesh HC Grants Anticipatory Bail To Man Accused Of Organized Crime, Posting Allegedly Defamatory Content On CM Chandrababu Naidu

The Andhra Pradesh High Court granted anticipatory bail to a man booked for conducting organized crime and for posting allegedly defamatory content against Chief Minister N Chandrababu Naidu and Deputy Chief Minister Pawan Kalyan on social media which was claimed to have caused political disturbance and potential violence. 

Justice Harinath N in its order referred to Supreme Court's decision in Mohamad Iliyas Mohamad Bilal Kapadiya vs. the State of Gujarat which had held that to invoke the offence of organized under the relevant state law more than one charge sheet should be filed in the preceding ten years. It thereafter noted that BNS Section 111 (organized crime) was analogous to the organized crime acts of various states which were dealt with by the Hon'ble Supreme Court. 

It thereafter referred to Kerala High Court's decision in Mohammed Hashim vs. State of Kerala where the court had emphasized that Section 111 (BNS) can be invoked only if more than one charge sheet has been filed for such offences in the preceding ten years before a competent court and such charge sheets are taken cognizance by the court.

The Andhra Pradesh High Court thereafter agreed with the Kerala High Court's observation and noted that in the present case and admittedly, no charge sheet has been filed against the petitioner Pesala SivaShankar Reddy for "similar offences in any court of law in the preceding ten years as such".

It further said, "...cause for invocation of Section 111 of B.N.S. has to be dealt appropriately by the investigating officer during the course of investigation of the crime". 

The petitioner, Pesala Sivashankar Reddy, moved the high court seeking anticipatory bail after an FIR was registered against him under BNS Sections 192(giving wrong information with intent to cause riots), 196(promoting enmity between groups), 336(4) [forgery of electronic records], 340(2), 353(2) [statement made with the intent to promote feelings of hate], 61(2) [criminal conspiracy], 111(2)(b) (conducting organized crime) and section 67 of the IT Act (punishment for transmitting obscene material). 

The main allegation against the petitioner was that he has repeatedly posted defamatory comments on social media about the Chief Minister and Deputy Chief Minister of the State which is "alleged to have caused political disturbance that could lead to escalated violence". 

With respect to application of Section 67 of IT Act the court observed that the apex court in Apoorva Arora and another vs. State (Government of NCT of Delhi) and another has dealt with the evolution of the law insofar as the applicability of provision is concerned.

The high court noted that the Supreme Court has considered the various judicial precedents which considered the applicability of the "Hicklin test" to determine whether the book 'lady Chatterley's Lover' was obscene in the decision of Ranjit D. Udeshi v. State of Maharashtra and as per the Hicklin test, a material is obscene if it tends to deprave and corrupt the minds of those who are open to such immoral influences and into whose hands the publication is likely to fall. 

The high court thereafter noted that the Supreme Court had in another decision had said that the Hicklin test must not be applied as it “judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults”. It thereafter noted that the Supreme court had in Aveek Sarkar markedly moved away from the Hicklin test to the “community standard test” where the material is considered as a whole to determine whether the specific portions have the tendency to deprave and corrupt. 

In view of the same the high court granted anticipatory bail to Reddy subject to certain conditions. 

"The petitioners shall be released on bail in the event of arrest on furnishing a personal bond of Rs.10,000/- with two sureties for a like sum, to the satisfaction of the Station House Officer, Kankipadu Police Station. The petitioners shall cooperate with the investigation as and when required. With the above conditions, the criminal petition is allowed," the court directed.

Case title: Pesala Sivashankar Reddy vs. State of AP

Counsel for petitioner: Y. L. Siva Kalpana Reddy

Counsel for respondent: Public Prosecutor

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