"Mere Expression Of Derogatory Words Do Not Attract Section 124A or 153A":J&K HC Grants Bail To Councillor Accused Of Making 'Derogatory Remarks' During Indo-China Face-Off [Read Order]

The Bench of Justice Sanjay Dhar was hearing the plea of Zakir Hussain (a democratically elected Councilor of LAHDC) wherein it has been submitted that the petitioner has been falsely implicated in case FIR No.34 of 2020.

Relying on Supreme Court Judgment in Balwant Singh and Anr. vs State of Punjab, the High Court observed that  mere expression of derogatory or objectionable words may not be a sufficient ground for invoking the provisions contained in Section 124A or 153A of IPC. The said provisions would apply only when the written or spoken words have the tendency or intention of creating disorder or disturbance of public peace by resort to violence. 

"It will be premature for this Court to comment on the question whether the alleged conversation made by the petitioner and uploaded on the social media has the tendency of creating disorder or disturbance of public peace by resort to violence. The same has to be considered by the trial court while framing charge against the petitioner, against whom, the challan is stated to have been filed during the pendency of this bail petition."

The FIR has been registered for offences under Section 124A (Sedition), 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), 153B ( Imputations, assertions prejudicial to national-integration), 505(2) (Statements creating or promoting enmity, hatred or ill will between classes) and 188 (Disobedience to order duly promulgated by public servant) of IPC registered with Police Station, Kargil.

The petitioner had approached the Court of learned Principal Sessions Judge, Kargil, by way of a bail application but the same was dismissed vide order dated 28.07.2020.

It has been alleged by the Prosecution that the petitioner has made highly objectionable and derogatory comments against the Country and its armed forces and uploaded the said remarks on social media and, therefore, the offences mentioned in the FIR are made out against him.

Background of the Case

As per the case of the prosecution, on 18.06.2020, Police received information from reliable sources that an audio clip containing objectionable conversation pertaining to the armed forces of the Country having reference to clashes between the Indian Army and armed forces of China that took place in the Galwan Valley, has gone viral on social media.

On the basis of this information, the subject FIR was registered by the police and investigation of the case was set into motion.

During the investigation of the case, an audio clip of 6.3 minutes duration was seized and it was found to contain a conversation between the petitioner/accused, Zakir Hussain, and co-accused Nissar Ahmad Khan.

The conversation contains extremely objectionable expressions and sentences allegedly used by the petitioner against the Country, its leadership as well as against the Indian Armed Forces. Accordingly, the petitioner was arrested on 19.06.2020.

The counsel for the petitioner vehemently contended that even if it is assumed that the petitioner had made the conversation and uploaded the same on the social media; still then, the offence under Section 124A and 153A of IPC is not made out against the petitioner.

According to him, in order to make out a case under Section 124A of IPC, it is necessary that the offensive remarks or speech should lead to some sort of violence or agitation from the public, which is not the case here.

The Counsel for the Petitioner relied on the case of Balwant Singh and Anr. vs State of Punjab (1995) 3 SCC 214 to bring home the aforesaid point.

In the case of Balwant Singh (supra) the Apex Court had held that mere expression of derogatory or objectionable words may not be a sufficient ground for invoking the provisions contained in Section 124A or 153A of IPC.

The said provisions would apply only when the written or spoken words have the tendency or intention of creating disorder or disturbance of public peace by resort to violence.

Court' Analysis

The Court was of the opinion that it would be premature for the Court to comment on the question as to whether the alleged conversation made by the petitioner and uploaded on social media has the tendency of creating disorder or disturbance of public peace by resort to violence.

The Court observed that the same has to be considered by the trial court while framing charge against the petitioner, against whom, the challan is stated to have been filed during the pendency of this bail petition.

Further, the Court noted that the challan in the case has been filed, which means that the investigation of the case is complete.

The petitioner, the Court observed, is not alleged to have committed an offence which carries capital punishment, as such, the rigour of Section 437(1)(i) of the Code of Criminal Procedure is not attracted to the instant case.

Besides this, the Court noted,

"The petitioner is an elected representative of LAHDC having deep roots in the community, as such, the chances of his fleeing from justice are very remote... The Case Diary shows that immediately after the commission of the alleged offence by the petitioner, he has published a public apology and expressed his regrets. This conduct of the petitioner subsequent to the commission of the alleged offence, lends assurance against the repetition of a similar offence by the petitioner." (emphasis supplied)

For the foregoing reasons, the petition was accepted by the Court and the petitioner was admitted to bail subject to the condition that he shall furnish personal bond with one surety in the sum of Rs.50,000/ to the satisfaction of the trial court.

Case Details:

Case Title: Zakir Hussain v. UT of Ladakh through Director General of Police and others

Case No.: Bail App No.67/2020

Quorum: Justice Sanjay Dhar

Appearance: Advocate M. A. Rathore (for the petitioner); ASGI T. M. Shamsi, (for the respondents)