The court emphasized that to establish an offence under Section 353(2) of BNS, specific intent to promote religious hatred must be clearly demonstrated, which was lacking in the complaint.

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI)

This petition is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita , 2023 (‘BNS S’ for short), for grant of anticipatory bail in Crime no.127/2024 of Bhatkal Town Police Station for offence punishable under Section 353 (2) of Bharatiya Nyaya Sanhita , 2023 (‘BNS’ for short) by sole accused (petitioner).

2. Sri Venkatesh M. Kharvi, learned counsel for petitioner submitted petitioner was 57 years old businessman and permanent resident of Asarkeri. He had not committed any offences, but apprehending arrest in Crime no.127/2024 registered on 08.11.2024 by Bhatkal Town Police Station for offence punishable under Section 353 (2) of BNS arraigning petitioner as sole accused in order to destroy his reputation.

3. It was submitted, even in complaint filed by Mohiddin Ruknuddin (complainant), he stated that on 04.11.2024 at 12:00 p.m. petitioner had addressed public in premises of Assistant Commissioner’s office at Bhatkal, stating that properties claimed by muslims as Wakf did not belong to them, and that they were only tenants as in year 1947, their fore-fathers were given properties and sent to Pakistan. He also stated that for Hindus - Hindustan and for Muslims - Pakistan were created. He declared that if muslims wanted property, they were to go to Pakistan and get their properties there. He was also alleged to have stated, in case they demanded property, they would be driven away to Pakistan and for which, there would be no requirement of Police or Army. It was alleged in garb of protesting against land jihad, petitioner was attempting to promote hatred on grounds of religion.

4. It was further stated that on 04.11.2024, an event was organized by Bhatkal BJP, in premises of Assistant Commissioner, Bhatkal, wherein Sunil Nayak former MLA and other members of BJP party were present and petitioner had joined them and stated falsehood against Muslims and Wakf properties and in garb of protest event, he had made false statements against Wakf properties and also threatened that muslims would be sent to Pakistan, which was in violation of their religious rights. Based on said complaint, Crime no.127/2024 was registered for above said offence.

5. At outset, it was submitted, alleged incident occurred on 04.11.2024, whereas complaint was filed on 08.11.2024 i.e. after delay of four days, which would be fatal. It was submitted, to constitute offence under Section 353 (2) of BNS , main ingredient would be intention to create or promote hatred on ground of religion, between two religious groups. But, complaint lacked specific assertion about intention. It was submitted, petitioner was sole bread earner of family.

6. Insofar as criminal antecedents of petitioner, it was submitted petitioner was acquitted in all others except in Crime no.230/2017 for offence punishable under Sections 143 , 147 , 353 , 341 , 504 read with 149 of Indian Penal Code , 1860 (‘IPC ’ for short). It was submitted, since same was still pending, it could not be referred to as antecedent. On above grounds, sought for allowing petition.

7. On other hand, Smt.Girija S. Hiremath, learned HCGP for respondent – State submitted, complaint contained specific overt acts against petitioner. Further, offence alleged against petitioner was of promoting hatred between two groups on ground of religion which under Section 353 (2) of BNS would attract punishment of imprisonment upto 3 years. It was submitted, since petitioner had involved himself in similar offences earlier, in case of grant of bail, he was likely to commit similar offences again. It was lastly submitted, since investigation was in progress, there was also likelihood of tampering of prosecution witnesses and material. On above grounds, sought rejection.

8. Heard learned counsel.

9. From above, point that arises for consideration is:

“Whether petitioner is entitled for anticipatory bail on conditions?”

10. From above, in this petition for anticipatory bail,