Sunday, June 4, 2023

Allahabad High Court dismisses Abbas Ansari petition for quashing criminal proceedings

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The Allahabad High Court has dismissed the petition of MLA Abbas Ansari, son of Mukhtar Ansari, seeking quashing of criminal proceedings.

A single-judge bench of Justice Dinesh Kumar Singh passed this order while hearing an application under section 482 filed by Abbas Ansari and another.

The petition under Section 482 CrPC has been filed seeking quashing of the charge sheet dated 11.5.2022 under Sections 171-F, 506, 186, 189 and 153-A and 120-B IPC in pursuance to the FIR dated 3.3.2022 registered at Crime, initially registered under Sections 506 and 171-F IPC at Police Station Kotwali Mau, District Mau.

Further prayer has been made for quashing of the order of cognizance and summoning dated 23.5.2022 passed by the Special Judge (MP/MLA Court)/Additional Chief Judicial Magistrate, Mau.

The FIR in question came to be registered after petitioner no1 (Abbas Ansari) made a statement in a public meeting during his election campaign for Member of Legislative Assembly from Mau Sadar Constituency. Petitioner No1 was contesting on the ticket of Suheldev Bharatiya Samaj Party in March 2022.

The main contention of the counsel for the petitioners is that the said statement by no stretch of imagination would constitute an offence under Section 153-A IPC.

It has been further submitted that to constitute an offence under Section 153-A IPC, there must be an intention of the person making the statement to create disorder or to incite people to violence.

Even if it is believed that petitioner no1 had made the said statement, the statement was directed towards the Government people and not against any member, religion, racial, language or regional groups or castes or communities.

It is also submitted that if the provisions of Section 153-A IPC are considered in proper perspective, the said offence would not get attracted against the petitioners for making the offending statement and, therefore, taking cognizance for an offence under Section 153-A IPC against the petitioners is wholly illegal and to that extent at least the cognizance order is bad in law and is liable to be set aside.

On the other hand, M.C. Chaturvedi, Additional Advocate General, submitted that the investigating officer has prepared a report, which was sent to the Government for sanction of the prosecution against petitioner No1 on 3.5.2022. Thereafter, the chargesheet has been submitted against both the petitioners on 11.5.2022. The Government had sanctioned prosecution against both petitioners on 24.8.2022 and the said sanction order has been incorporated in the case diary of Parcha and forwarded the same on 02.09.2022.

It has been further submitted that petitioner no 1 is having seven similar cases, including the present one, and petitioner no 2 is having to his credit five criminal case, including the present one. After making the offending statement by petitioner no1, the Returning Officer of 356 Mau Assembly Constituency sent a notice dated 4.3.2022 to petitioner no1 calling upon him to furnish his reply as to why action should not be taken against him under the relevant provisions of Representation of Peoples Act, 1951.

However, petitioner no 1 did not give any reply to the said notice issued by the Returning Officer. The Election Commission of India had barred petitioner no 1 from holding any public meeting, public procession, public rallies, road shows and interviews, public utterances in media (electronic, print, social media) etc in connection with the ongoing election for 24 hours from 7 PM from 4.3.2022.

Additional Advocate General has further submitted that the offending statement made by petitioner no.1 was not only directed against the Government machinery, but it was also directed against the law abiding and peace-loving citizens/communities, who were feeling protected under the then government in the State from the atrocities and crimes of petitioner no 1 and his family and other co-accused.

He has also submitted that the State Government had given free hand to the State machinery to handle law and order without being influenced from any political pressure. The Government officials had acted as per law without being coming under pressure from any quarter and, therefore, the residents of the said constituency, who were not supporters of the petitioners, were threatened and made insecure by giving threats to the government officials. Not only the Government officials but all those who were feeling safe and secure, felt tremors and fear in their spines by the open threat given by the petitioners.

He has, therefore, submitted that the offence under Section 153-A IPC is clearly attracted in the facts and circumstances of the case.

Additional Advocate General has also submitted that the gesture, language and the context are relevant to see whether the offence under Section 153-A IPC is attracted or not. If one looks at the video recording of the statement given by petitioner no 1 in public meeting, the warning was not against the Government officials, but it was against all those who were feeling protected and saved under the then State government.

Petitioner no1 was sure that the Government of Samajwadi Party led by Akhilesh Yadav would occupy the seat of power in the State of Uttar Pradesh and, therefore, he made the threatening statement, which has the propensity to disturb the public order.

He, therefore, submitted that the offence under Section 153-A IPC is clearly attracted against the petitioners and no interference is required by this Court to quash the proceedings, and the petition being devoid of merit and substance, is liable to be dismissed.

The Court observed,

The offence under Section 153-A IPC may get attracted where a person 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 community 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 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. If the statement or the sign or representation has propensity to incite people to violence, the offence under Section 153-A IPC gets attracted.

The Supreme Court in the case of Balwant Singh (Supra) has held that 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.

Thus, the question of proving mens rea to incite people to violence or cause disorder is to be proved during trial by leading evidence by the prosecution. However, if prima facie, the act, sign or words has propensity to disturb the public order or incite the people to violence, the proceedings cannot be quashed at the threshold.

The Supreme Court in the case of Bilal Ahmed Kaloo (supra) by placing reliance on the judgement of Balwant Singh (supra) has again reiterated that mens rea is an equally necessary postulate for the offence under Section 153-A IPC and same can be discerned from the words “with intent to create to promote or which is likely to create or promote”.

The Court said that, the preamble to the Constitution consciously puts together fraternity assuring dignity of the individual and the unity and integrity of the Nation which are linked; one in the form of rights of individuals; and other in the form of individual’s obligation to others to ensure unity and integrity of the Nation. The unity and integrity of the Nation cannot be overlooked and slighted, as acts that promote or are likely to promote divisiveness, alienation and schematism do directly and indirectly impinge on diversity and pluralism. When such acts are done with the objective and intent to cause public disorder or to demean dignity of the targeted groups, they have to be dealt with as per law and such an act would attract the offence under Section 153-A IPC.

“Considering the context and the intention with which the offending words were spoken in a public meeting, at this stage it cannot be said that the offence under Section 153-A IPC is not attracted against the petitioners. The scope of power under Section 482 CrPC is limited, and it should be exercised in exceptional cases where the complaint or charge sheet does not disclose any offence. Whether the offence under Section 153-A IPC gets attracted or not, would depend on the quality of evidence led by the prosecution during trial. However, at this stage, this Court does not find any ground to interfere with the ongoing proceedings or the chargesheet,” the Court observed while dismissing the petition.

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