Kerala High Court Quashes FIR U/S 153 IPC Against Jewish Australian Woman Who Tore Posters Creating Impression On Palestine-Israel War
The Kerala High Court recently quashed an FIR registered against an Australian woman of Jewish descent booked for provoking rioting under Section 153 IPC for allegedly tearing two posters in Fort Kochi, which had "apparently" created an impression in her mind about the ongoing Palestine-Israel war.
For context, Section 153 pertains to wantonly giving provocation, with intent to cause riot and states whoever malignantly, or wantonly by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation be punished.
Noting that it was unfortunate that the petitioner faced the traumatic incident of being arrested in 'God's own country' a single judge bench of Justice Bechu Kurian Thomas said, “Since, the posters were concededly put up without any legal authority and also since it did not contain the name of any organisation that had put it up, the act of removing the posters or tearing down the posters cannot be said to be an illegal act or as one capable of provoking the commission of riot. Hence, the prosecution of the petitioner for an offence under section 153 IPC is an abuse of the process of law and the proceedings are liable to be quashed.”
Background
The allegation against the petitioner is that she and her friend allegedly tore down two posters in Fort Kochi containing the slogan that “Silence Is Violence, Stand Up For Humanity”, which had been put up by an unknown organization. Perturbed by the two posters, the petitioner, an Australian citizen of Jewish descent and her friend, afterbeing unsuccessful in their attempt to get it removed through the tourism office, allegedly felt it necessary to remove them.
"The banners apparently generated in her mind, impressions about the ongoing war between Palestine and Israel," the order notes. Thereafter petitioner allegedly tore the two banners/posters.
A crime was registered against the petitioner based on a complaint filed by the Area Secretary of the Students Islamic Organization (SIO), a student wing of the Jamaat-e-Islami, under Section 153 IPC.
The petitioner was arrested by the police and subsequently obtained bail. When she tried to leave the country, she was detained at Kochi International Airport based on a lookout notice issued at the police's behest for a bailable offence. The magistrate's court took cognizance of the matter pursuant to which the petitioner approached the High Court for quashing.
The woman's counsel said that the posters allegedly removed by her were anyway not legally permissible posters and therefore its removal cannot be termed as a malignant or wanton act which was illegal. It was also submitted that the petitioner, being a tourist had to undergo tremendous anguish due to the registration of the case. The state submitted that allegations are required to be tested in a trial. The complainant in the FIR was served however no one appeared on his behalf.
Findings
The Court noted that the posters allegedly torn by the petitioner were not put up after obtaining permission. The high court took note of the primary ingredients of Section 153 IPC which are –accused does an illegal act, act was done malignantly, done with intention to provoke or knowing that it will provoke a person to cause rioting.
It thereafter said, tearing down an illegal poster cannot be termed as an illegal act done with the intent to cause rioting and hence the offence under S 153 is not made out.
“Removal of an illegal poster cannot be said to be an illegal act done malignantly or wantonly, even if it is done by a private individual, though ideally, petitioner ought to have approached the law enforcement agencies, instead of tearing it by herself. Since tearing down a poster kept without any legal authority cannot strictly fall within the term illegal act, the main ingredient of Section 153 is lacking in the final report," the court underscored.
The Court further noted that the final report was "totally silent" on whether the petitioner was aware that the tearing of the poster will cause the offence of rioting or provoke people to indulge in rioting.
"The absence of such an allegation assumes significance in the light of the statement of the defacto complainant himself that the posters never carried the name of any organization," it said, adding that in the absence of the organization's name the petitioner could not have imagined that the removal could invoke offence under S. 153 IPC.
The high court thereafter quashed the FIR and the proceedings against the petitioner.
Case Title: Zara Michele Shilansky v State of Kerala
Counsel for Petitioner: Advocates Blaze K.Jose, Nikhil Sanjay, Treesa Rose, Airine Joby
Counsel for Respondents: Public Prosecutor Sreeja V
Case Number: CRL.MC NO. 6800 OF 2024
Citation: 2024 LiveLaw (Ker) 603