Gowri Lankesh and K.L. Ashok vs The State of Karnataka and Deepak

A.S. Pachhapure, J.—The petitioners have approached this Court seeking a writ or a direction in the nature of certiorari to quash the FIR produced at Annexure-"B" dated 20.08.2012 at Mangalore South Police Station and the further proceedings pursuant to the registration of the crime under Sections 114 and 153-A of the Indian Penal Code. The facts reveal that on 28.07.2012, in the evening, a birth day celebration of a college mate was arranged by a group of students in the Home Stay at the outskirt of Mangalore, within the limits of Mangalore City Police Station and it is alleged that at that time a group of Hindutwa Activists said to be a pro-Hindu organization entered into the said party, beat the members gathered there and said to have molested the girl students by assaulting them. After this incident was known by the public, it is alleged that there is wide spread protests in the State and in the background, several organizations including "Komu Souharda Vedike" [Communal Harmony Forum], to which the petitioners belong held a protest meeting on 04.08.2012 at a place opposite to the Office of the Deputy Commissioner Dakshina Kannada District and the protest meeting was followed by a procession, wherein the 2nd petitioner is said to be the organizer and the 1st petitioner, who is an Editor of "Gowri Lankesh Patrike", a Kannada weekly magazine, was a speaker. During the speech, petitioner No. 1 is said to have condemned the incident and demanding stringent action against the communal forces.

It is in this back-ground a complaint came to be filed against the petitioners by respondent No. 3 on 20.08.2012. It is alleged in the complaint that the 1st petitioner made a speech in the said programme arranged which promotes or attempts to promote disharmony or feelings of inmate, ill-will amongst the people belonging to Hindu Religion or Group of persons and that the 2nd petitioner instigated the 1st petitioner in spreading disharmony or feelings of enmity amongst different groups or the religions. It is also alleged that the 1st petitioner in his speech, questioned about the very existence of the Hindu religion stating that this religion is without a father or a mother and further that there is no Hindu religion at all. So, in pursuance of the allegations made in the complaint filed by the 3rd respondent, Mangalore South Police registered a complaint in Crime No. 138/2012 against the petitioners herein for the charge under Sections 153-A and 114 IPC and continued their investigation. It is the very registration of this crime that is questioned by the petitioners herein.

The petitioners contend that the impugned action of the Police is violative of freedom of speech under the Articles of the Constitution of India and the complaint do not reveal any averments to attract the ingredients of Section 153-A IPC. So also they contend that the action initiated is actuated by malice and bad motives with a determined purpose of suppressing freedom of speech and expression.

During the pendency of the writ petitions, the copy of the speech recorded is made available to the Court and also to the petitioners.

I have heard learned counsel for the petitioners and also leaned High Court Government Pleader.

It is the contention of learned counsel for the petitioners that there is no religion as a Hindu religion and therefore, he contends that there is no question of promoting feelings of enmity or disharmony amongst the religious groups. That apart, he contends that the petitioners have a right of freedom of speech and expression, which is guaranteed under Article 19 of the Constitution of India and hence, he would contend that as the speech does not refer to any act prejudicial to maintenance of harmony or promote disharmony or feelings of enmity, the provisions of Section 153-A IPC are not attracted at all.

Furthermore, he contends that so far as the 2nd petitioner is concerned, there is nothing on record to prove any act of instigation to the 1st petitioner to deliver a speech to cause disharmony. He submits that arraying the 2nd petitioner as an accused is improper and illegal. He would submit that the complaint filed by the 3rd respondent is with malice and bad motive, to suppress the freedom of speech of the petitioners and the action taken on the basis of such a complaint is liable to be set aside.

On the other hand, learned High Court Government Pleader submits that the perusal of the speech itself would reveal the ingredients of Section 153-A IPC as the petitioners did such an act, which causes disharmony amongst the people of the Hindu religion and therefore, he claims that the Police were justified in registering the crime and continuing the investigation.

The perusal of the material placed on record would reveal that the petitioners are said to have involved in the movement of communal harmony and are carrying on an organization called as "Komu Souhanda Vedike", to mean a Forum for Communal Harmony. The 2nd petitioner is said to be the Member-Secretary of the said Forum, whereas the 1st petitioner is said to be the member of a Board of Presidents of the Forum. In addition, the 1st petitioner is the Editor of "Gowri Lankesh Pathrike", a Kannada Weekly Magazine, devoted to fight against variety of social evils, injustice and maladministration. After the incident of "Home Stay Attack" on 28.07.2012, the aforesaid petitioners'' organization with its numerous members, organized a protest meeting on 04.08.2012 in front of the Office of the Deputy Commissioner, Mangalore. The 1st petitioner is said to be the speaker in the said meeting and her speech was recorded in an audio CD. The speech was retrieved from the said CD., and is transcribed. In the said speech the 1st petitioner said "which is this Hindu Religion, who is the profounder of this religion we know the profounder of Christian religion and the holy book, we know the Mohammedan religion and also its holy book, likewise, about the Sikh religion, the Buddhism religion, Jain religion, but who is the profounder of the Hindu religion and it is also stated that this is a religion without a father and mother and it does not have a holy book, it never existed and it was named only after the British, can it be called a religion" and further in the said speech it is said "the ''R.S.S." is a poisonous snake and so also "Sri.rama Sene", "Hindu Jagarana Vedhike", "Bajaranga Dala", etc. So also, it is stated "these are the persons, who are responsible for the death of Mahathma Gandhi and destruction of Babri Masjid". So, referring to the aforesaid contents in the speech, it reveals that in the speech made by the 1st petitioner, the very existence of a religion is questioned and prima facie it reveals assertions comparing different religions and referring Hindu religion as born without parents.

It is relevant to note that even after independence, under the Constitution, different laws have been enacted by the Parliament and the Hindu Law is in existence since the time immemorial. After the independence, the Hindu Succession Act, Hindu Minority and Guardianship Act and different other laws have been enacted, which deal the persons of Hindu religion. Section 2(1)(a) of the Hindu Succession Act reads-

This Act applies;

(a) to any person, who is Hindu by religion in any of its forms or developments including a Virashaiva a Lingayat or a follower of the Brahmo, Prathana or Arya Samaj;

[emphasis supplied]

(b) to any person who is Buddhist, Jaina or Sikh by religion; and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu Law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.

This definition is found in different other laws. Therefore, looking to the provisions of these different enactments, there appears to disbelieve the very existence of Hindu religion. When the Indian Constitution and Laws made by the Parliament, recognize Hindu religion, this Court in a petition under Article 226 of the Constitution and or, the basis of the material placed on record cannot take a decision as to whether the Hindu religion is in existence or not.

So, in this context, the speech made by the 1st petitioner on 04.08.2012 is perused, prima facie there is a material about promoting of enmity or ill-will between different groups or religions. The assertions that the other religions have the parents, a holy book and calling Hindu religion as parentless or without a holy book would be a prima facie an act of causing disharmony amongst the people of Hindu religion.

Learned counsel for the petitioners has placed reliance on the decision of this Court reported in Hulikal Nataraju Vs. State of Karnataka and K.H. Chetan . The facts in this decision reveal that the petitioner therein alleged to have stated in the television channel called MNN that he will create "Thirthodbhava at Talakaveri", "The eagle revolving round Garudagambha at Sri. Aiyappaswamy Temple as false" and also "Light that appears on Makara Sankranthi as false". In this context, a complaint was filed against the petitioner for the charge u/s 298 IPC. The essential ingredients necessary to constitute an offence are:

(i) That the accused wounded the religious feelings of some person or persons;

(ii) That the accused did so by uttering some words or making any sound in the hearing of that person (persons) or by making any gestures in the sight of that person or by placing any object in the sight of that person;

(iii) That the accused did so with deliberate intention.

It is in this context that this Court held that the word uttered are not with a deliberate intention, religious feelings and this Court took into consideration Article 51A(h) of the Constitution of India, relating to Development of Scientific temper humanism and spirit of enquiry and reform and held:

Scientific temper and the spirit of enquiry is a must for eradicating superstitions.

Proceedings initiated did not attract the ingredients of Section 298 IPC. The facts aforesaid are altogether different than the one on hand. In the case on hand, Section 153-A IPC has been invoked against the petitioners in relation to the speech made by the 1st petitioner, which is said to cause disharmony or feelings of enmity hatredness etc., between different religious groups and prima facie, the perusal of the speech appears to be a material u/s 153-A IPC attributing and challenging the very existence of a religion and calling it as legitimate in comparison with other religion, prima facie is an act which falls within the said provision. In the aforesaid decision, there was question of comments on superstitions and their eradication and as the conduct was bona fide, this Court held that the allegations do not attract Section 298 IPC. No such bona fides prima facie could be found in the speech delivered by the 1st petitioner.

So far as the 2nd petitioner is concerned, in the complaint it is alleged that he instigated the 1st petitioner to deliver the said speech. The perusal of the copy of the complaint reveals an allegation that the 2nd petitioner instigated the 1st petitioner in making a speech to cause bad feelings and to cause disharmony amongst the religions and groups of religions and so far as the said instigation is concerned, it is a matter for investigation by the Police, to collect the evidence. At this stage before completion of the investigation, this Court cannot quash the proceedings on the ground that there is no evidence against the 2nd petitioner. When the complaint filed by the 3rd respondent reveals the allegations for the offence punishable under Sections 114 and 153-A IPC., the investigating agency is free to collect the evidence and if in respect of the 2nd petitioner, no material is collected, the Investigating Officer has a discretion to drop the case against the 2nd petitioner. At this stage, before the completion of the investigation, it appears improper to quash even the proceedings against the 2nd petitioner. The perusal of the material placed on record has not made out any grounds to seek any writ or direction for quashing registration of the complaint against them. Hence the petitions are liable to be dismissed and are dismissed accordingly.