[Making Allegations Of Torturing Muslim Youth] 'No Intention To Promote Enmity B/w Two Religious Groups', Kerala HC Grants Bail To SDPI Leader [Read Order]

The Bench of Justice Ashok Menon was of the view that if the poster allegedly published by the accused is perused, it cannot be said that the intention of the accused was to promote ill will or hatred between two communities.

Notably, the applicant is the accused in Crime No.592 of 2020 of Nenmara Police Station, Palakkad, for having allegedly committed offences punishable under Sections 153, 505(2) of the IPC and Section 117(e) of the Kerala Police Act.

Case against petitioner

The accused had allegedly prepared posters and pasted them at several places, creating or promoting hatred or ill will between two religious groups, by stating that Muslim youth were subjected to torture in custody by the North SI, Sudheer Kumar.

It was allged that the intention in coming out with such poster was to create ill will and promote the enmity between two religious groups and thus, the applicant committed the alleged offence.

Several cases were registered at different Police Stations, since the poster gained wide circulation and were allegedly pasted at different places and the applicant was arrested initially, in another crime on 07.09.2020.

The arrest in this particular crime was recorded on 14.09.2020. The applicant was granted bail in some of the crimes.

But, since several crimes were registered, he could not come out of the prison, despite being granted bail in some of the cases.

The applicant stated that the maintainability of the allegation is doubtful and therefore, he may be released on bail.

Arguments Put forth

Petitioner's Counsel argued that the alleged incident of Police atrocity by the SI of Police, is not untrue, because there was a specific allegation that the two Muslim youth, who were allegedly arrested in connection with Crime No.981 of 2020 Town North Police Station, Palakkad, were allegedly subjected to custodial torture.

It was stated that Facebook posts have also come in connection with this alleged torture. The photographs of the youth were also published and therefore, it cannot be said that the statement contains a rumour regarding an incident, which has not occurred at all.

Further, it was argued that there is also no intention to create any ill will between two classes or community or religion. Hence, the applicant is entitled to be released on bail, argued the learned counsel for the applicant.

The Public Prosecutor stated that allegations have been made against the SI of Police, who belongs to a Hindu community and therefore, there is an attempt made by the applicant to create enmity, hatred and ill will between two classes and it is specifically stated that the persons, who are subjected to custodial torture are Muslim youth and indication is sufficiently there to show that the SI belonged to a different community.

Court's Analysis and Decision

The Court opined that the allegation was specifically towards the SI of police, who had misused the office as a police officer, tortured Muslim youth and the applicant, being a leader of the SDPI, had highlighted this incident as a torture against Muslim youths.

However, the Court didn't conclude on whether an offence under Section 505 (2) IPC would be attracted or not, but there was sufficient indication for the Court to exercise jurisdiction in favour of granting bail to the applicant.

The High Court relied on the ruling of Apex Court in the case of Bilal Ahmed Kaloo v. State of AP (1997)(7 SCC 431) wherein certain posters and publications were allegedly made by the accused therein against the Indian army, who had allegedly tortured Muslim youths in the State of Jammu And Kashmir.

The Court took into account the fact that the Apex Court (in the aforesaid case) has specified that merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two provisions of Section 153A nor section 505.

Further, the Court remarked,

"In the instant case also, the allegation is mainly attributed to the SI of Police, who had allegedly tortured two Muslim Youth. But, merely, because the persons who were subjected to torture have been described as Muslim youths by itself may probably not attract Section 505 (2) of the IPC, is the argument of the learned counsel appearing for the applicant."

The Court was of the opinion that the applicant has been incarcerated for long enough and there is no need for further incarceration of the applicant and hence, he is entitled to bail.

In the result, the application was allowed and the applicant was directed to be released on bail on the execution of a bond for Rs.50,000/-(Rupees Fifty thousand only), with two solvent sureties, each for the like amount to the satisfaction of the jurisdictional court.

Case Details:

Case Title: Ameer Ali v. State Of Kerala

Case No.: Bail Appl..No.6034 OF 2020

Quorum: Justice Ashok Menon

Appearance: Advocate E. A. Haris (for the Petitioner/Accused); SR.PP Santhosh Peter –Public Prosecutor Mitesh Amin With APP Ms Jirga Jhaveri (for the Respondent No. 1).