Arvinder Singh @ Ghoga vs State of Punjab

This is an Application filed under Section 439 of the Code of Criminal Procedure on behalf of Petitioner seeking regular bail in FIR No.0082 dated

24.05.2016, under Sections 121/121-A of the IPC and Section 10/13 of the Unlawful Activities (Prevention) Act, 1967 registered at Police Station

Rahon, Distt. S.B.S.Nagar.

The Petitioner was arrested on 25.5.2016. Challan/Final Report was submitted on 19.11.2016 under Sections 121, 121-A of IPC and 10/13 of the

Unlawful Activities (Prevention) Act, 1967.

The submissions/grievances raised on behalf of Petitioner are two fold, being â€

(i)That the charges framed against him for the aforesaid offences are not established from the prosecution material collected during investigation, and,

(ii) That in any case, the Petitioner by now has already undergone detention in excess of two years till date, on account of which his further detention

for an indefinite period is not justified.

Reliance from the Petitioner's side has been placed upon certain decision in support of the contention that the offences, for which he is facing trial

are not made out. The first decision cited in this regard is 'Nazir Khan and others Vs. State of Delhi' 2003 SCC (Crl.) 2033. The endeavour of the

Petitioner's side in this respect is to emphasize that the acts attributed to him, such as sharing of allegedly seditious/communally sensitive or hateful

posts on Social Media do not disclose any ingredients to establish the offence of waging or attempting or abetting the waging of War against the Govt.

of India within the meaning of Section 121 of the IPC, or the conspiracy to commit such offence as provided in Section 121-A of the IPC.

It has been emphasized that in Nazir Khan (supra), the offence under Section 121-A IPC or for that matter, the lesser offence of Sedition under

section 124-A of the IPC was established by the Supreme Court on account of very prominent and palpably visible violent acts clearly indicating a

conspiracy to achieve the desire objectives against the Government of India, such as by kidnapping of Hostages with a view to securing release of the

associates of the offenders, who had allegedly been already apprehended/detained for similar offences, of Hijacking of Air Craft with the same

objective, killing of innocent passengers as well as collection of Arms and Ammunition in furtherance of such objectives, all of which are missing qua

the Petitioner in this case. It has been also contended that the acts of posting objectionable/allegedly Seditious material on Social Media, such as Face

Book, or of having received some money from abroad, for distributing Pamphlets, or sending Booklets abroad meant to convey the objective of

securing “purity†or “non-servility†of the 'Sikh Panth' cannot amount to waging or attempting or abetting or conspiring to wage war against

the Govt. of India, nor render the Petitioner liable for any serious offences even under the Unlawful Activities (Prevention) Act, 1967.

The petitioner's side has also relied upon a decision of the Apex Court in 'Balwant Singh and another v. State of Punjab' AIR 1995 SC 1785, in

which the appellants, who had been convicted of the offences under sections 124-A and 153-A of the IPC for having raised the following Slogans in a

crowded place -

Khalistan Zindabad

Raj Karega Khalsa, and

Hinduan Nun Punjab Chon Kadh Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da

Their conviction was set aside by the Supreme Court, which observed inter-alia -

“11. It is not the prosecution case that either of the appellants had shouted the slogan 'Hindustan Murdabad'. On what material did the learned

Judge find that the appellants had shouted that particular slogan belies our comprehensions. Obviously, for convicting the appellants, the trial Judge

also pressed into aid the allegation that the appellants had shouted 'Hindustan Murdabad', which is nobody's case. The learned trial Judge, to say the

least, seems to have drawn upon his imagination a course not permissible for a Court of Law.

It appears to us that the raising some slogan only a couple of times by the two lonesome appellants, which neither evoked any response nor any

reaction from any one in the public can neither attract the provisions of Section 124A or Section 153A IPC Some more overt act was required to bring

home the charge to the two appellants, who are Government servants. The police officials exhibited lack of maturity and more of sensitivity in

arresting the appellants for raising the slogans - which arrest -and act the casual raising of one or two slogans - could have created a law and order

situation, keeping in view the tense situation prevailing on the date of the assassination of Smt. Indira Gandhi. In situations like that, over sensitiveness

some times is counter productive and can result is inviting trouble. Raising of some lonesome slogans, a couple of times by two individuals, without

anything more, did not constitute any threat to the Government of India as by law established not could the same give rise to feelings of enmity or

hatred among different communities or religious or other groups.â€​

The above submissions from the Petitioner's side have been countered by the State, which has drawn attention of the Court to the offence u/s 122

of the IPC, which is also contained in Chapter VI alongwith the offences u/ss 121 and 121-A of the IPC, for which the Petitioner has been actually

charged. The aforesaid offence u/s 122 IPC is set out as below -

“Collecting arms, etc., with intention of waging war against the Government of India.â€"Whoever collects men, arms or ammunition or otherwise

prepares to wage war with the intention of either waging or being prepared to wage war against the [Government of India], shall be punished with

[imprisonment for life] or, imprisonment of either description for a term not exceeding ten years, [and shall also be liable to fine].

Classification of Offence-- The offence under this section is cognizable, non-bailable, non-compoundable and triable by Court of Session.â€​

In this regard, the submission of the State is that even collecting men, and not necessarily Arms and Ammunition themselves, or otherwise preparing

in any manner to wage war with the intention of either waging or being prepared to wage war against the Government of India without any actual

violence itself is an offence. Of course, the Petitioner has not been charged for the offence u/s 122, but perusal of the punishment prescribed for the

same would go to show that it happens to be exactly identical with that prescribed for the offence u/s 121- A of the IPC. Consequently, he can be

convicted of the same if the material on record so indicates.

From its side, the State has placed a large number of documents running into almost 3000 Pages to show that the Petitioner is not only involved in

propaganda and inciting people to resort to violence with the objective of waging war against the Govt. of India with a view to establish an

independent State/Nation by the name “Khalistan†by way of liberating the Sikhs from India or Indian Rule, and for this purpose, there is direct

incitement to violence especially by way of targeted killing of the members of particular religious community, and that such incitement was not only

done by the Petitioner personally by pasting Pamphlets encouraging Sikh youths to join the Organization for formation of “Khalistan†in the month

of March in the City of Sri Anandpur Sahib, Distt. Rupnagar on the eve of Hola-Mohalla Festival, but also by reproducing similarly provocative and

incendiary messages from the Leaders of designated Terrorist Groups based in Pakistan on Social Media/Face Book Account, which is accessible to

innumerable people both in India and Worldwide, and which is actually a fake account of the Petitioner himself under the Pseudonym 'Mitha Singhâ€,

that also reveals his direct contact and connections with the concerned Leaders of the designated Terrorist Organizations based outside India.

Some of the relevant posts attributed to the Petitioner's aforesaid Account undoubtedly reveal overt incitement to violence for the purpose of

establishing the State of “Khalistanâ€. It is also seen from some of the coloured printouts of the Screen Shots of the alleged Face Book Account

that several persons are active on the Social Media with the same objective simultaneously. Perusal of the material highlighted by the State from the

Plethora of documents drawn up by way of Cyber Tracking of Petitioner's alleged communication with the head of Terrorist Organization indisputably

indicate positive incitement for resorting to violence meant for achieving the aforesaid objective of creating the State of “Khalistanâ€. The reliance

on the Balwant Singh (supra) therefore, in the present case would not appear to be helpful to the Petitioner, since here the incitement is on Social

Media directly accessible all over the World simultaneously, and not just in a limited crowded place, such as the one in which the Slogans were

shouted by the Appellants in the said case. Similarly, the response of innumerable people associated with or monitoring/participating in the Social

Media interaction can also not be directly verified as was possible in the case of Balwant Singh (Supra), where it was held that Slogans shouting did

not evoke any reaction from the crowd, but the same is not the case here, as the posts of several other persons, as seen in the Social Media Screen

Shots would go to indicate. It can therefore, be safely held that the Petitioner by way of collecting 'men', with the intention of either waging or being

prepared to wage war against the Government of India, would be liable under section 122 of the IPC, which is punishable at par with section 121-A of

IPC itself, for which he is already facing trial. The punishment in such event can extend to imprisonment for life. For these reasons therefore, the

Petitioner would not appear to be entitled for immediate release on bail at this stage.

Regarding the delay in the trial, it has transpired that by now, nine out of the total 24 challaned witnesses have already been examined, and all the

remaining witnesses have been summoned for their evidence on 7.6.2018, which date is within a week from today. In the given circumstances,

completion of the trial would not appear to be very far at this stage and, therefore, considering the gravity of the offences, for which the Petitioner has

been charged, and the punishment prescribed for the same, this does not appear to be a fit case to release him forthwith.

The petition is therefore, dismissed. However, the Ld. Trial Court is directed to complete the pending trial as expeditiously as possible, and

preferably within three months from the date of communication of this Order.