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PETITIONER:

BILAL AHMED KALOO

Vs.

RESPONDENT:

STATE OF ANDHRA PRADESH

DATE OF JUDGMENT: 06/08/1997

BENCH:

A. S. ANAND, K. T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:

THE 6TH DAY OF AUGUST, 1997

Present:

Hon'ble Dr. Justice A. S. Anand

Hon'ble Mr. Justice K. T. Thomas

S. k. Bhattacharya, Adv for the appellant

Guntur Prabhakar, Adv. for the Respondent and Appellant in

Crl. A. No, 81/97

J U D G M E N T / O R D E R

The following Judgment/Order of the Court was

delivered:

J U D G M E N T

THOMAS. J

Bilal Ahmed Kaloo, a Kashmiri youth had a sojourn in

the city of Hyderabad and was involved in a prosecution

under Terrorist and Disruptive Activities (Prevention) Act,

1987, (for short 'TADA'). Though the Designated Court under

TADA he was convicted of Sedition under Section 124-A of

Indian Penal Code and was sentenced to imprisonment for

life, besides being convicted of certain other lesser

offences for which a sentence of rigorous imprisonment for

three years was awarded under each count. This appeal has

been preferred by the said convicted person under Section 19

of the TADA.

The case against the appellant in short is the

following. Appellant was an active member of a militant

outfit called Al-Jehad which was formed with the ultimate

object of liberating Kashmir from Indian Union. With this in

mind appellant spread communal hatred among the Muslim youth

in the old city of Hyderabad and exhorted them to undergo

training in armed militancy and offered them arms and

ammunitions. He himself was in possession of lethal weapons

like country-made revolver and live cartridges. He was

propagating among the Muslims that in Kashmir Muslims were

being were being subjected to attrocities by the Indian Army

personnel.

During the period when series of bomb-blasting occurred

in the city of Hyderabad the police kept a close watch on

the activities of the appellant who was then staying in a

room adjacent to Masjid-e-Niyameth Kha-e-ali at Mir-ka-Daira

at Haribowli in Hyderabad. He was arrested on 19-1-1994 and

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after recording his confessional statement the police seized

a revolver and two cartridges which were produced by him.

After investigation was completed he was challaned before

the Designated Court at Hyderabad for offences under

Sections 124-A, 153-A and 505(2) IPC, and under Sections

3(3), 4(3) and 5 of the TADA, and also under Section 25 of

the Indian Arms Act.

As mentioned above the Designated Court acquitted him

of the offences under TADA but convicted him of the offences

under the Indian Penal Code and also under Section 25 of the

Indian Arms Act and was sentenced as aforesaid.

While dealing with the offences of which appellant was

convicted there is no question of looking into the

confessional statement attributed to him, much less relying

on it since he was acquitted of all offences under TADA. Any

confession made to a police officer is inadmissible in

evidence as for these offences and hence it is fairly

conceded that the said ban would not wane off in respect of

offences under the Penal Code merely because the trial was

held by the Designated Court for offences under TADA as

well. Hence the case against him would stand or fall

depending on the other evidence.

The decisive ingredient for establishing the offence of

Sedition under Section 124-A IPC is the doing of certain

acts which would bring the Government established by law in

Indian into hatred or contempt etc. In this case, there is

not even a suggestion that appellant did anything as against

the Government of India or any other Government of the

State. The charger framed against the appellant contains no

averment that appellant did anything as against the

Government.

A Constitution Bench of this Court has stated the law

in Kedar Nath Singh vs. State of Bihar(AIR 1962 SC 955 at

page 967) as under:

"Now the expression 'the Government

established by law' has to be

distinguished by law' has to be

distinguished from the persons for

the time being engaged in carrying

on the administration. 'Government

established by law' is the visible

symbol of the State. The very

existence of the State will be in

jeopardy if the Government

established by law is subverted.

Hence, the continued existence of

the Government established by law

is an essential condition of the

stability of the State. That is why

'section', as the offence in S.124A

has been characterised, comes,

under Chapter VI relating to

offences against the State. Hence

any acts within the meaning of

S.124A which have the effect of

subverting the Government by

bringing that Government into

contempt or hatred, or creating

disaffection against it, would be

within the penal statute because

the feeling of disloyalty to the

Government established by law or

enmity to it imports the idea of

tendency to public disorder by the

use of actual violence or

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incitement to violence."

As the charge framed against the appellant is totally

bereft of the crucial allegation that appellant did anything

with reference to the Government it is not possible to

sustain the conviction of the appellant under Section 124A

IPC.

Evidence of the prosecution relating to offences under

Section 153A and 505(2) IPC consists of oral testimony of

certain witnesses who claimed that appellant was telling

others that the Army personnel have been committing

atrocities on Muslims in Kashmir. Among those witnesses PW-

7, PW-7 and PW-13 were not cross-examined at all. Accepting

their evidence, it can be held without any difficulty that

prosecution has established beyond doubt that appellant was

spreading the news that members of the Indian Army were

indulging in commission of attrocities against Kashmiri

Muslims. So it is not necessary to advert to the other

evidence which only repeats what those witnesses said. Hence

the question to be decided now is whether those acts of the

appellant would attract the penal consequences envisaged in

Section 153A or 505(2) of IPC.

Section 153A was amended by the Criminal and Election

Laws (Amendment) Act 1969 - Act No.XXXV of 1996. It consists

of three clauses of which clauses (a) and (b) alone are

material now. By the same amending Act sub-section (2) was

added to Section 505 of the Indian Penal Code. Clauses (a) &

(b) of Section 153A and Section 505(2) are extracted below:

"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 commuity 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, or

..........................

shall be punished with imprisonment

which may extend to three years, or

with fine, or with both."

"505(2) Statements creating or

promoting enmity, hatred or ill-

will between classes.- Whoever

makes, publishes or circulates any

statement or report containing

rumour or alarming news with intent

to create or promote, or which is

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likely to create or promote, on

grounds of religion, race, place of

birth, residence, language, caste

or community or any other ground

whatsoever, feelings of enmity,

hatred or ill-will between

different religious, racial,

language or regional groups or

castes or communities, shall be

punished with imprisonment which

may extend to three years, or with

fine, or with both."

The common ingredient in both the offences is promoting

feeling of enmity, hatred or ill-will between different

religious or racial or linguistic or regional groups or

castes or communities. Section 153A covers a case where a

person by "words, either spoken or written, or by signs or

by visible representations" promtes or attempts to promote

such feeling. Under Section 505(2), promotion of such

feeling should have been done by making and publishing or

circulating any statement or report congaining rumour or

alarming news.

This Court has held in Balwant Singh and another vs.

State of Punjab (1995 3 SCC 214) that mens rea is a

necessary ingredient for the offence under Section 153A.

Mens rea is an equally necessary postulate for the offence

under Section 505(2) also as could be discerned from the

words "with intent to create or promote or which is likely

to create or promote" as used in that sub-section.

The main distinction between the two offences is that

publication of the word or representation is not necessary

under the former, such publication is sine qua non under

Section 505. The words "whoever makes, publishes or

circulates" used in the setting of Section 505(2) cannot be

interpreted disjunctively but only as supplementary to each

other. If it is construed disjunctively, any one who makes a

statement falling within the meaning of Section 505 would,

without publication or circulation, be liable to conviction.

But the same is the effect with Section 153A also and then

that Section would have been bad for redundancy. The

intention of the legislature in providing two different

sections on the same subject would have been to cover two

different fields of similar colour. The fact that both

sections were included as a package in the same amending

enactment lends further support to the said construction.

Yet another support to the above interpretation can be

gathered from almost similar words used in Section 199 of

the Penal Code as "whoever by words.........makes or

publishes any imputation......."

In Sunilakhya Chowdhury vs. H.M. Jadwet and another

(AIR 1968 Calcutta 266) it has been held that the words

"makes or publishes any imputation" should be interpreted as

words supplementing to each other. A maker of imputation

without publication is not liable to be punished under that

section. We are of the view that the same interpretation is

warranted in respect of the words "makes, publishes or

circulates" in Section 505 IPC also.

The common feature in both sections being promotion of

feeling of enmity, hatred or ill-will "between different"

religious or racial or language or regional groups or castes

and communities it is necessary that atleast two such groups

or communities should be involved. Merely inciting the

felling of one community or group without any reference to

any other community or group cannot attract either of the

two sections.

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The result of the said discussion is that appellant who

has not done anything as against any religious, racial or

linguistic or regional group or community cannot be held

guilty of either the offence under Section 153A or under

Section 505(2) of IPC.

What remains is the offence under Section 25(1B) of the

Indian Arms Act. PW-1 was the Superintendent of Police of

Hyderabad City Zone (CID) during the relevant time. He

deposed to the fact that he made close watch on certain

organizations in the wake of series of bomb blasts which

rocked that city for a while and on receipt of some vital

information about the activities of the appellant he

proceeded to the place where he was staying, accompanied by

two Revenue officials(PW-22 and PW-23). He found out

appellant in Room No.2 of the building annexed to Masjid-e-

Niyameth Kha-e-Ali at Mir-ka-Daira at Haribowli. PW-1 said

that on being interrogated appellant produced one revolver

(MO1) and two cartridges (MO2 & MO3). Those articles were

seized and later they were subjected to tests in the

Forensic Science Laboratory. PW-16, the Assistant Director

of that Laboratory has stated in court that the said

revolver and cartridges were found to be in perfect working

condition and he issued a certificate to that effect.

PW-14 who was incharge of management of the rooms in

the building attached to the aforesaid mosque said that

appellant was staying in Room No. 2 of the building during

the relevant time. Trial court found that evidence

acceptable and we have no reason to dissent from it.

Learned counsel for the appellant, however, assailed

the prosecution case relating to the said revolver and

cartridges, on the ground that those articles were not

sealed after seizure and were left at the Police Station for

a number of days before they were sent to the Forensic

Science Laboratory.

We are not impressed by the said contention and we may

point out that appellant made no allegation at any stage of

the case that the revolver and the cartridges were tampered

with by the police. Not even a suggestion was made to any

witness in that direction. According to the counsel, since

those articles were not sealed there was the possibility of

their being tampered with. Such and academic possibility

need not be consonance by us in this case because even the

accused has no case that they were tampered with. That

apart, the particulars of the weapon were given in the

seizure memo and the same tallied with the weapon on

examination by the ballistic expert. There is no challenge

to the seizure memo admittedly prepared at the time of

recovery of arms and amunition. The identity of the weapon

thus stands, established beyond any reasonable doubt.

Assistant Director of Forensic Science Laboratory

conducted scientific test on the articles and found them to

be in working condition.

We are, therefore, in agreement with the finding

recorded by the trial court that appellant was in possession

of arms and amunition in violation of law and he is thus

liable to be convicted under Section 25(1B)(a) of the Arms

Act. The sentence awarded by the trial court (rigorous

imprisonment for three years) in the circumstances of the

case needs no interference.

In the result, we partly allow this appeal and set

aside the conviction and sentence passed on the appellant

for offences under Section 124A, 153A and 505(2) of the

Indian Penal Code. We confirm the conviction and sentence

passed on him under Section 25(1B)(a) of the Arms Act. The

appellant shall be released from custody fothwith if he has

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undergone the sentence passed on him under section 25

(1B)(a) of the Arms Act and is not wanted in any other case.

Before parting with this judgment, we wish to observe

that the manner in which convictions have been recorded for

offences under Section 153A, 124A and 505(2), has exhibited

a very casual approach of the trial court. Let alone the

absence of any evidence which may attract the provisions of

the sections, as already observed, even the charges framed

against the appellant for these offences did not contain the

essential ingredients of the offences under the three

sections. The appellant strictly speaking should not have

been put to trial for those offences. Mechanical order

convicting a citizen for offences of such serious nature

like sedition and to promote enmity and hatred etc. does

harm to the cause. It is expected that graver the offence,

greater should be the care taken so that the liberty of a

citizen is not lightly interfered with.