In the fitness of things and taking a most balanced holistic view, the Punjab and Haryana High Court has in a most learned, laudable, landmark and latest judgment titled Karamjit Singh Gill vs State of Punjab in CRM-M-45796-2022 (O&M) that was pronounced finally on December 13, 2022 while observing that intention to cause disorder or incite people to violence is the sine qua non for the offence under Section 153-A granted bail to Congress leader Karamjit Singh Gill who was arrested in August for wearing a t-shirt with picture of 1984 riots-accused Jagdish Tytler at Golden Temple.

While the case registered under Section 153-A by Amritsar police accuses Gill of hurting the sentiments of Sikh with his actions, the Single Judge Bench of Hon’ble Mr Justice Sandeep Moudgil said that mere wearing of a T-shirt with a picture of one of his favourite person with the words ‘HAPPY BIRTHDAY TO OUR BELOVED GODFATHER’ … does not reflect any incriminating material or provocative act on the part of the petitioner to bring the case within the ambit of Section 153-A IPC. The Court said that no iota of evidence has come forth even in the challan against the accused with regard to uttering of any word or by any other means which may cause hurt to the feelings of a particular community.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of the Punjab and Haryana High Court comprising of Hon’ble Mr Justice Sandeep Moudgil sets the ball in motion by first and foremost putting forth that:
The instant petition has come up before this Court invoking the jurisdiction under Section 439 Cr.P.C seeking regular bail in case FIR No. 103, dated 17.08.2022, under Section 153-A of the Indian Penal Code, 1860 (for short ‘IPC’), registered at Police Station E-Division, Amritsar City.

To put things in perspective, the Bench then envisages in next para that:
Dr. Anmol Rattan Singh, learned Senior counsel for the petitioner contends that he has been falsely implicated in the present case on false and baseless allegations while referring to the FIR dated 17.08.2022 (Annexure P-1) lodged on a complaint by one Sulkhan Singh, Manager, Sach Khand Shri Harmandir Sahib, Shri Darbar Sahib, Amritsar. He has drawn the attention of this Court to the story of the prosecution as recorded in the said FIR with the allegations attributed qua the petitioner, of which the relevant reads as under:-

Sir, on dated 16.08.2022 one person came at Sachkhand Harmandir Sahib, Sri Darbar Sahib Amritsar, after taking a dip in the holy water and thereafter, wore a t-shirt having picture of Jagdish Tytler who was an accused of 1984 Sikh genocide and after clicking a photograph and without paying obeisance went out in his skoda car along with his security officials. Under a conspiracy he has tried to disturb the atmosphere and he has hurt the Sikhs sentiments. His activities are recorded in CCTV cameras.

He is also having a security (gunman). From the social media we came to know that his name is Karamjit Singh Gill who is known as Chairman of SC/ST Cell Congress. Legal action may kindly be taken. Documents attached. Photocopy of Picture. Sd/- Sulakhan Singh Manager, Sachkhand Sri Harmandir Sahib, Shri Darbar Sahib, Sri Amritsar.

As it turned out, the Bench clearly pointed out in this judgment that, Considering the provisions, as envisaged in Section 153-A IPC and examining the contents of FIR, the test for the prosecution is to make out a prima facie case has to establish within the ingredients incorporated therein. Section 153-A IPC would apply if, a person is found doing acts prejudicial to maintenance of harmony by promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, etc by words either spoken or written or by signs or by visible representations or otherwise promotes or attempts to promote disharmony or feeling of enmity, hatred or ill-will between different religious, racial, language or regional groups or caste or community apart from other factors.

Be it noted, the Bench then enunciates in the next para that:
In the instant case mere wearing of a T-shirt with a picture of one on his favorite person with the words HAPPY BIRTHDAY TO OUR BELOVED GOD FATHER, as is evident from Annexures R-2/3 and R-2/4 with the reply filed by respondent No.2 supported by seizure memo Tshirt (Annexure R-2/1), does not reflect any incriminating material or provocative act on the part of the petitioner to bring the case within the ambit of Section 153-A IPC. Moreover, from the identity of the petitioner it transpired that he is General Secretary, SC/ST Cell of the Punjab Pradesh Congress Committee as has been put on record by way of final report under Section 173 Cr.P.C.

While citing the relevant case law, the Bench then elucidates in the next para stating that:
The Apex Court in the case of Patricia Mukhim vs. State of Meghalaya and other reported in AIR 2021 Supreme Court 1632 while deliberating on Section 153-A IPC held as under:-

9. Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquility, the law needs to step in to prevent such an activity. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153-A IPC and the prosecution has to prove the existence of mens rea in order to succeed.

10. The gist of the offence under Section 153-A IPC is the intention to promote feelings of enmity or hatred between different classes of people. The intention has to be judged primarily by the language of the piece of writing and the circumstances in which it was written and published. The matter complained of within the ambit of Section 153-A must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.

It cannot be glossed over that the Bench then minces no words to state unequivocally in the next para of this notable judgment that:
In the instant case no iota of evidence has come forth even in the challan against the present petitioner with regard to uttering of any word or by any other means which may cause hurt to the feelings of a particular community.

While citing yet another relevant case law, the Bench then points out in the next para of this most commendable judgment that:
In another judgment Balwant Singh and another vs. State of Punjab; (1995) 3 SCC 214 the Supreme Court examining the question to make out prima facie case under Section 153-A IPC held as under:-

9. Insofar as the offence under Section 153A IPC is concerned, it provides for punishment for promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever or brings about disharmony or feeling of hatred or ill-will between different religious, racial, linguistic or regional groups or castes or communities. In our opinion only where the written or spoken words have the tendency or intention of creating public disorder or disturbance of law and order or effect public tranquility, that the law needs to step in to prevent such an activity.

Most significantly, the Bench then minces no words to unequivocally hold in the next para of this noteworthy judgment that:
I have gone through the entire case record including the challan prepared under Section 173 Cr.P.C and considered the submissions of respective counsel for the parties. It is true that except wearing a T-shirt with a photograph of a leader of his own party by the petitioner, no overt act has been attributed against him and there is no material whatsoever even to infer that the petitioner was acting under any pre-oriented plan as alleged or to suggest that by words either spoken or written or by any other means as enumerated under Section 153-A IPC.

He incited anyone to create violence or promote communal hatred. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153-A IPC and there is no existence of mens rea for the prosecution to succeed.

Needless to say, the Bench then mandates in the next para of this learned judgment that:
Therefore, having found no prima facie material against the petitioner to constitute an offence punishable under Section 153-A IPC, this Court is of the view that the benefit of bail can be extended to him. It is also weighs in the mind of this Court that investigation in the case is complete, challan stands filed and the petitioner is already in custody for 3 months and 23 days, as is evident from custody certificate dated 12.12.2022.

As a corollary, the Bench then holds in the next para that:
Accordingly, it is ordered that the petitioner shall be released on bail on furnishing bail bonds and one local surety to the satisfaction of learned Chief Judicial Magistrate, Amritsar, however, in order to facilitate trial the following conditions are imposed on his bail:

1. If the petitioner is having any Pass Port, he will surrender the same before the Investigating Officer immediately.
2. He will record his appearance at the police station before the Investigating Officer once in a week.
3. He will not try to influence any of the witnesses of the case directly or indirectly.

For sake of clarity, the Bench then clarifies in next para specifying that, However, the Chief Judicial Magistrate, Amritsar may relax any of the conditions under (i) or (ii) or both in appropriate circumstances.

Finally, the Bench then concludes by holding finally that:
In terms of the above, the present petition under Section 439 Cr.P.C. is allowed. Ordered accordingly.

In essence, we thus see that the Punjab and Haryana High Court has taken the most commendable decision to make it absolutely clear that intention to clear disorder is essential for invoking Section 153-A of IPC. If there is no intention then an accused can definitely not be convicted for offence under Section 153-A of IPC. So the accused who is a Congress leader was thus rightly granted bail by the Court. No denying!

Parvez Alam (Advocate), BA, LLB, LLM,
Chamber No. 151, Near Election Office,
Collectrate Compound, Kutchery,
Meerut - 250003