The court ruled that mere dissent or criticism of government actions does not constitute an offence under Section 153A IPC unless it promotes enmity or hatred.

ORDER :

Farjand Ali, J.

The jurisdiction of this Court has been invoked by way of filing an application under Section 439 Cr.P.C. at the instance of accused-petitioners. The requisite details of the matter are tabulated herein below:

2. It is contended on behalf of the accused-petitioners that no case for the alleged offences is made out against them and their incarceration is not warranted. There are no factors at play in the case at hand that may work against grant of bail to the accused-petitioners and they have been made accused based on conjectures and surmises.

3. Contrary to the submissions of learned counsel for the petitioners, learned Public Prosecutor opposes the bail application and submits that the present case is not fit for enlargement of accused on bail.

4. I have considered the submissions made by both the parties and have perused the material available on record.

5. Upon consideration of the submissions of learned counsel for the petitioners that simply uttering words "Khalistan Zindabad" does not ipso facto attract an offence under Section 153A of IPC. It is not comprehensible as to how the penal provisions of Unlawful Activities (Prevention) Act have been invoked in this case as well as there are no overwhelming circumstances to draw a presumption regarding guilt of the petitioners.

6. Enunciation of law related to the present controversy is made by Hon'ble the Supreme Court in the case of Javed Ahmad Hajam v. State of Maharashtra & Anr. (Criminal Appeal No.886 of 2024), decided on 07.03.2024. The relevant paras of the judgment dated 07.03.2024 are being reproduced here under :-

"5. The only offence alleged against the appellant is the one punishable under Section 153A of the IPC. Section 153A of the IPC, as it exists with effect from 4th September 1969, reads thus:

"153-A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.-(1) Whoever-

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity,

(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,

shall be punished with imprisonment which may extend to