The main legal point established in the judgment is the requirement to consider the offending article as a whole and not base findings on specific portions. The judgment also emphasizes the need for compelling and substantial reasons to interfere with an order of acquittal.

Wangdi, J.

This Appeal is filed under Sub-Section (4) of Section 378 of the Code of Criminal Procedure, 1973 (in short the “Cr.P.C.) assailing the impugned judgment dated 20-06-2013 of the Sessions Judge, Special Division – I, Sikkim at Gangtok (hereinafter referred to as the ‘First Appellate Court’) in Criminal Appeal No.10 of 2011 which had set aside the conviction and sentence passed by the Judicial Magistrate, East Sikkim at Gangtok (hereinafter referred to as the ‘Trial Court’) against the Respondent No.1 in Private Complaint Case No.19 of 2008 for offence under Section 153B of the Indian Penal Code, 1860 (in short the “IPC”) on a complaint lodged by the Appellant.

2. In the original complaint, it had been alleged that the Respondent No.1 who is the Editor and Publisher of local dailies, namely, ‘Hamro Prajashakti’ in Nepali and ‘Himalayan Mirror’ in English had indulged in publishing various offending news articles which tended to promote feelings of enmity or hatred or ill-will between Sikkimese and non-Sikkimese people. There were two specific articles referred to in the Complaint, one of which was a news article published in its issue of 15-05-2007 and the other on 24-04-2008. We are at present concerned only with one published on 24-04-2008 as the other one was not found to be incriminating by the Trial Court, a finding which remained unchallenged.

3. In the Nepali newspaper, ‘Hamro Prajashakti’ in its issue dated 24-04-2008, an article titled “Aaj Dharamshalama Tala Lagayo Bholee Rangpoko Gatema Tala Lagauncha Dhikkar Cha Aaphno Matoma Aurulai Dharamshala Banauna Dineharulai” was published which as per the Appellant was likely to cause disharmony and feelings of enmity, hatred or ill-will between two communities in Sikkim. It is further alleged that the offending article is prejudicial to public order and public security and is a direct attack on a Government established by law.

4. The Trial Court upon consideration of the Complaint, evidence and the records came to a finding that on a bare perusal, the article had the potential to cause feeling of enmity and hatred amongst the two communities, i.e., Sikkimese and non-Sikkimese. The words used in the article was provocative in nature and the fact that the newspaper had wide circulation in the State of Sikkim, gave rise to every likelihood of there being breach of peace and tranquility.

5. In the Appeal filed against this judgment, the First Appellate Court held that on a careful perusal of the article as a whole, no offence under Section 153B(1)(c) IPC could be said to have been made out against the Respondent No.1 as held by the Trial Court thereby acquitting him of the charges. It is against this finding that the present Appeal has been filed.

6. Before this Court, Mr. Eklovya Rai Nagpal, Learned Advocate, appearing on behalf of the Appellant, submitted that the First Appellate Court had fallen in error in setting aside the conviction and sentence against the Respondent No.1 passed by the Trial Court by failing to appreciate the facts of the case and the laws governing the offence under Section 153B IPC. That the finding that there was nothing to suggest that the concerned passages when read in the context of the whole article was perverse and contrary to the finding of the Trial Court in its judgment dated 17-12-2010.

7. By reading out the impugned article, Exhibit 7(a), Mr. Nagpal urged that the words used in and the substance of the article was such that it was likely to cause disharmony and feeling of enmity, hatred or ill-will between the aforesaid two communities. It was further submitted that the First Appellate erred in holding that “The author of the article has categorically put a caveat to the effect that, ‘the tone in the article is not a communal tone intended to loathe any particular community” and that was “a circumstance going in favour of the author and the publisher”. As per the Learned Counsel, the fact that the author or the publisher of