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MHCC020054062022
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
AT BOMBAY
BAIL APPLICATION NO.962 OF 2022
IN
C.R. NO.500 OF 2022
1. Navneet Rana
Aged: 36 years, Occu.: Member of
Parliament.
]
]
]
2. Ravi Rana
Aged: 40 years, Occu.: Member of
Legislative Assembly.
Both residing at:
R/o.: Flat no.801/802, La Vie,
14th Road, Khar (West), Mumbai.
]
]
]
]
]
Accused.
]
]
]
Respondent.
Versus
The State of Maharashtra
(At the instance of Khar Police Station,
vide C.R. No.500/2022.)
Appearance:
Ld. Sr. Counsel Mr. Abad Ponda a/w ld. Adv. Mr. Rizwan Merchant for
the Accused.
Ld. SPP Mr. Pradeep Gharat for the Respondent/State.
CORAM: H.H. THE ADDL. SESSIONS JUDGE
SHRI R.N. ROKADE
(CR NO.54)
DATE :
4th May, 2022.
ORAL ORDER
(Dictated and pronounced in open Court)
This is an application under section 439 of the Code of
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Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’ for short),
for grant of regular bail on behalf of accused Navneet Rana and Ravi
Rana (hereinafter referred as ‘the applicants’) in connection with C.R.
No.500/2022, registered at Khar Police Station, Mumbai, for the
offences punishable under sections 124A and 153A r/w section 34 of
the Indian Penal Code, 1860 (hereinafter referred as ‘IPC’) and under
sections 37(1) and 135 of the Maharashtra Police Act, 1951.
Shorn of superfluities, the prosecution case is as under:
2.
On 23.04.2022, the first informant namely, Shri Upendra
Anant Lokegaokar, a lawyer by profession lodged report at Khar Police
Station against the applicants. It is alleged that since last two days
some political parties have initiated agitation raising an issue of
loudspeakers on Mosque, to be shut down. In such situation, applicant
no.1 who is, an elected member of the Parliament and applicant no.2
who is, an elected member of the Legislative Assembly of the
Maharashtra State, made an announcement that they would be reciting
religious verses i.e. Hanuman Chalisa in front of the private residence
of Shri Uddhav Thackeray, the Chief Minister of the State of
Maharashtra. On 22.04.2022, both the applicants reached Mumbai at
2.00 p.m. at their private residence and they declared that they would
be reciting Hanuman Chalisa at Matoshree Bungalow which is a private
residence of the Chief Minister. Therefore, the police officials
approached the applicants and informed that they should not indulge
in such acts and a notice under section 149 of the Cr.P.C. was also
issued and served on the applicants. Despite service of notice, both the
applicants gave statements on visual media and print media that they
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would be reciting Hanuman Chalisa in the private residence of the
Chief Minister. They also informed that the workers from Amravati
were also joining them to recite Hanuman Chalisa.
Due to the
aforesaid announcements and statements of the applicants, there is an
adverse reaction in the Maharashtra State, resulting in growing
estrangement in the society. The acts and statements of the applicants
are likely to cause serious threats to law and order in Mumbai. With
these allegations, the first informant lodged a report against the
applicants.
On the basis of the said report, police registered C.R.
No.500/2022 for the offences punishable under section 153A r/w
section 34 of the IPC and under sections 37(1) and 135 of the Bombay
Police Act at Khar Police Station. Later on, section 124A of IPC came
to be added on 24.04.2022.
3.
On 23.04.2022 at about 5.00 p.m., the applicants came to
be arrested on the basis of the aforesaid report. They were produced
before Metropolitan Magistrate at Bandra on 24.04.2022.
The ld.
Magistrate was pleased to remand the applicants in judicial custody till
06.05.2022. Initially, the applicants have filed bail application before
the ld. Magistrate. Since, the police have invoked section 124A in the
remand of the applicants, they approached this Court with undertaking
to withdraw bail application pending before the ld. Magistrate.
4.
This application is filed for regular bail on the following
grounds:
(i)
The arrest of the applicants is illegal, not in accordance
with law, disregarding the constitutional rights of the
applicants without any investigation and in a high
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handed manner.
(ii) Prima facie, FIR does not disclose any offences under
section 153A r/w 34 of IPC and sections 37(1) and 135
of the Bombay Police Act.
(iii) The arrest has been made without compliance of
provisions of sections 41 and 41A of Cr.P.C. in breach of
directions given by the Hon’ble Supreme Court in the
case of “Arnesh Kumar Vs. State of Bihar and Anr.”,
reported in (2014) 8 SCC 273.
(iv) The applicants had withdrawn their proposed visit at
Matoshree for reciting Hanuman Chalisa on 23.04.2022.
(v) There was no intention to cause ill will or hatred
feelings of persons as enumerated under section 153A
of the IPC. Therefore, offence under section 153A is not
made out against the applicants.
(vi) The applicants had complied with the directions of the
Mumbai Police and they did not step out of their
residence.
(vii) The applicant did not intend to incite violence or cause
any public disorder.
(viii)No sanction has been obtained from the Central
Government or State Government or District Magistrate
in accordance with section 196 and 197 of the Cr.P.C.
(ix) Applicant no.1 is a lady and elected member of
Parliament.
(x) No purpose would be served by keeping the applicant in
judicial custody.
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(xi) The applicants have deep roots in the society and they
have permanent address in Mumbai.
On these and amongst other grounds, the applicants prayed for
enlargement on bail.
5.
The prosecution strongly resisted the application by filing
say (Exhibit2). It is specifically contended that the applicants made
announcement that they would recite Hanuman Chalisa at the private
residence of the Chief Minister Shri Uddhav Thackeray. Accordingly,
on 22.04.2022, the applicants came to Mumbai at their residence at
14th Road, Khar (West), Mumbai. On the same day, the police went to
the house of the accused and served upon them a notice under section
149 of the Cr.P.C.
Inspite service of notice, the applicants gave
interviews to various news channels and stated that they would not
care for anybody and they would visit Matoshree to recite Hanuman
Chalisa. They also informed to the media that their followers from
Amravati would also reach Mumbai to recite Hanuman Chalisa. Due to
aforesaid announcement, the followers of Shiv Sena all over
Maharashtra started gathering at the residence of the accused as well
as at the private residence of Chief Minister, Maharashtra.
6.
The applicants announced to recite Hanuman Chalisa at
Matoshree Bungalow, which is the private residence of the Chief
Minister, is nothing but a big plot to create a challenge to the law and
order situation and to such an extent that it can be pleaded and the
recommendation can be made for dissolution of the present
Government by the Governor of Maharashtra. They hatched a very
effective plan in a precalculated manner taking into consideration that
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their acts created breach of peace and a serious issue of law and order
would be created. The move was taken and the words are uttered and
spoken by the applicants with full knowledge of the fact and with an
intention to bring into hatred or contempt or to excite disaffection
against the Government, or an instigation to the citizens to attempt
otherwise than by lawful means, or to raise discontent or disaffection
amongst citizens promoting the feelings of illwill and hostility between
different classes of citizens. The words spoken by the applicants prove
that their criticism and comments on public action are not only
strongly worded, but are not within reasonable limits and are not
consistent with the fundamental right of freedom of expression. The
applicants have crossed the limits of fair criticism permitted by law in a
democratic country.
7.
It is specifically contended that despite service of notice
under section 149 of Cr.P.C., the applicants made announcement that
they would visit Matoshree Bungalow on 23.04.2022 at 09.00 a.m.
They also gave challenge to the followers of Shiv Sena party and
thereby gave provocation to the person with knowledge that such
provocation would create law and order issue. Since, the applicants
have been arrested for the offence of sedition, the guidelines issued by
the Hon’ble Supreme Court in Arnesh Kumar case would not be
applicable to the facts of this case. On the aspect of sanction, it is
contended that it is required for taking cognizance and at the time of
registration of the offence, sanction is not necessary.
The offences
committed by the applicants are serious in nature. The investigation is
at nascent stage. If the applicants are released on bail, they would
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influence the witnesses and hamper the investigation.
Lastly, it is
contended that the applicants have criminal antecedents. On these and
amongst other grounds, the prosecution prayed for rejection of the
application.
8.
Heard ld. Sr. Counsel Mr. Abad Ponda for applicants and
ld. SPP Mr. Pradeep Gharat for the respondent.
Perused the
application, say and the material collected during the investigation.
9.
Amidst the above rival contentions, following points arise
for my determination. I have recorded my findings against each of
them for the reasons to follow:
POINTS
FINDINGS
1.
Whether the applicants are entitled for
grant of bail u/s.439 of Cr.P.C. ?
Yes.
2.
What order ?
As per final order.
REASONS
AS TO POINT NO.1:
10.
The ld. Senior Counsel Mr. Abad Ponda appearing for the
applicants has vehemently submitted that the decisive ingredient for
establishing the offence of sedition under section 124A is doing of
certain acts which would bring to the Government established by law
in India hatred or contempt etc., which would incite violence or
create public disorder.
It has been contended that even if the
allegations made in the FIR against the applicants are taken at their
face value, still then the offences which they have been charged are
not made out against them. He would submit that no speech has
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been delivered by any of the applicants or have not used such words
to bring or any attempt has been made to bring into the hatred or
contempt or excites disaffection towards the Government established
by law in India. By taking me through the FIR, he would submit that
the purpose to visit “Matoshree”, was not to incite the public to
commit violence or to create public disorder, but the purpose was to
chant a religious scripture of Hanuman Chalisa. Even remotely, there
was no intention to cause hatred against the State Government.
Therefore, the provisions of section 124A would not, in any manner,
be attracted in the facts of the present case.
11.
To bolster up the aforesaid submissions, reliance is placed
upon a Constitutional Bench decision of the Hon’ble Supreme Court in
the case of “Kedar Nath Singh v. State of Bihar”, reported in AIR
1962 SC 955, wherein it was postulated that the words, deeds or
writings constitute sedition punishable under section 124A only if
they incite violence or disturb law and order or create public disorder
or have the intention or tendency to do so.
12.
Reliance is also placed upon the following rulings:
(i)
“Sanskar Marathe Vs. The State of Maharashtra
through Commissioner of Police, Mumbai & Ors.”,
reported in 2015 SCC OnLine Bom 587.
(ii) “Sunaina Holey Vs. State of Maharashtra Through the
Public Prosecutor and Others”, reported in 2021 SCC
OnLine Bom 1127.
(iii) “Javed Habib Vs. State (NCT of Delhi)”, reported in
2007 (96) DRJ 693.
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13.
On second limb, the ld. Senior Counsel appearing for the
applicants contended that on reading of the FIR, it becomes clear that
it does not disclose any offence under sections 153A and which
requires that there should be some elements of mens rea in doing acts
contemplated in the sections. There is no allegation in the FIR that
there was an intention to cause enmity between different classes of the
society or create any situation of hatred between or among the
different religious/castes/social group as contemplated in section 153A
of IPC.
14.
To bolster up the aforesaid submisions, reliance is placed
upon the ruling of the Hon’ble Supreme Court in the case of “Bilal
Ahmed Kaloo Vs. State of AP”, reported in (1997) 7 SCC 431,
wherein the Hon’ble Supreme Court analysed the ingredients of
section 153A and 505(2) of IPC.
“Section 153A covers a case where a person by “words, either
spoken or written, or by signs or by visible representations”,
promotes or attempts to promote feeling of enmity, hatred or
ill will.
Under Section 505(2) promotion of such feeling
should have been done by making a publication or circulating
any statement or report containing rumour or alarming news.
Mens rea was held to be a necessary ingredient for the
offence under Section 153A and Section 505(2).
The
common factor of both the sections being promotion of
feelings of enmity, hatred or ill will between different
religious or racial or linguistics or religious groups or castes
or communities, it is necessary that at least two such groups
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or communities should be involved.
It was further held that merely inciting the feelings of one
community or group without any reference to any other
community or group cannot attract any of the two sections.
The Court went on to highlight the distinction between the two
offences, holding that publication of words or representation is
sine qua non under Section 505.”
15.
Reliance is also placed upon the ruling of “Sunaina
Holey Vs. State of Maharashtra” (supra).
16.
Lastly, it is contended that applicant no.1 is an elected
member of Parliament while applicant no.2 is an elected member of
State Legislative Assembly. The applicants have deep roots in the
society. Therefore, it is prayed for enlargement on bail.
17.
Per contra, the ld. SPP Mr. Gharat appearing for the State
submitted that the applicants in this case in a calculating manner
declared that they would recite Hanuman Chalisa at the private
residence of the Chief Minister of Maharashtra.
Even though the
outward appearance of the said announcement might seem
innocuous, still it had far reaching consequences and implications.
There was a big plot to create challenge to the law and order situation
and the same can be pleaded and recommendation can be made for
dissolution of the present Government by the Governor of
Maharashtra.
18.
The ld. SPP submitted that despite service of notice under
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section 149 of Cr.P.C. on the applicants, they gave interviews to
various news channels and stated that they would not care for
anybody and they would go to Matoshree Bungalow to recite
Hanuman Chalisa. The ld. SPP further submitted that due to the said
challenge, the followers of the ruling party started gathering at the
residence of the applicants as well as at the private place of residence
of the Chief Minister of Maharashtra.
The applicants gave
provocation and instigation by challenging the followers of the ruling
party. The move taken by the applicants in such a manner that the
real intention is disguised and obscured. They have in a very sly
manner made obvious references insinuating people following Muslim
faith.
19.
The ld. SPP further submitted that the language used by
each of the applicants prima facie establishes that the intention of the
applicants was to create hatred and contempt in the society against
the State Government established by law. The applicants have prima
facie committed an offence punishable under section 124A of IPC for
which punishment prescribed is upto life imprisonment. He would
submit that the investigation is going on and it is not desirable to
release the applicants at this stage.
Since, the applicants are
influential persons, possibility of tampering the evidence cannot be
ruled out. The applicants have criminal antecedents. Hence, it is
prayed for rejection of the application.
20.
It is to be noted here that while deciding the issue of
grant of bail, it is not required to delve deep into the merits of the
issue but only to the limited extent of finding out whether a prima
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case has been made out by the applicant for grant of bail.
For
arriving at the said satisfaction, it is not necessary for the Court to
delve deep into the merits of the issue, rather, it would suffice, if the
Court skims through the evidence in brief to find out whether the
complicity of the applicant in commission of the crime is made out.
21.
Before adverting to deal with the controversy, it is
necessary to refer the provision of section 124A of the IPC, which
reads as under:
“Whoever, by words, either spoken or written, or by signs, or
by visible representation, or otherwise, brings or attempts to
bring into hatred or contempt, or excites or attempts to excite
disaffection towards the Government established by law in
India, shall be punished with imprisonment for life, to which
fine may be added, or with imprisonment which may extend
to three years, to which fine may be added, or with fine.
Explanation1:
The
expression
“disaffection”
includes
disloyalty and all feelings of enmity.
Explanation2: Comments expressing disapprobation of the
measures of the Government with a view to obtain their
alteration by lawful means, without exciting or attempting to
excite hatred, contempt or disaffection, do not constitute an
offence under this section.
Explanation3: Comments expressing disapprobation of the
administrative or other action of the Government without
exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.
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22.
A plain reading of the above section would show that this
application would be attracted when the accused brings or attempts to
bring into hatred or contempt or excite or attempts to excite
disaffection towards the Government established by law in India, by
words either written or spoken or visible science or representations,
etc.. It is wellsettled that section 124A of IPC cannot be invoked to
penalize criticism of the persons for the time being engaged in carrying
on administration or strong words used to express disapprobation of
the measures of Government with a view to their improvement or
alteration by lawful means. Similarly, comments, however strongly
worded, expressing disapprobation of actions of the Government,
without exciting those feelings which generate the inclination to cause
public disorder by acts of violence, would not be penal. A citizen has a
right to say or write whatever he likes about the Government, or its
measures, by way of criticism or comments, so long as he does not
incite people to violence against the Government established by law or
with the intention of creating public disorder. The section aims at
rendering penal only such activities as would be intended, or have a
tendency, to create disorder or disturbance of public peace by resort to
violence.
23.
In the light of the aforesaid exposition of law, reverting to
the facts of the case, the applicants made an announcement that they
would recite Hanuman Chalisa in front of Matoshree which is the
private residence of the Chief Minister of Maharashtra. Accordingly,
on 22.04.2022, both the applicants reached Mumbai at their private
residence. The police officials approached the applicants and informed
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the applicants that they should not indulge in such acts and a notice
under section 149 of Cr.P.C. was also served upon the applicants. It is
pertinent to note that on perusal of the FIR, it is not the case of the
prosecution that the said announcement was made with an intention to
incite people to create disorder by acts of violence.
The said
announcement do not in any manner have the tendency of subverting
the Government by violent means, nor do the same have the effect of
creating hatred, disaffection or contempt for the Government.
24.
On perusal of the transcript of interviews allegedly to have
been made by the applicants are concerned, prima facie, it appears that
the applicants have used certain expressions and sentences against the
Chief Minister, which are extremely objectionable. It is to be noted
here that political leaders play an important role in facilitating peace
and tranquility. Their vitality is appreciated due to the fact that they
have followerspeople who believe in what they say and act
accordingly.
Therefore, politicians and other public figures have
greater responsibility. The impact of political speech is also greater
because politicians are in a position of authority. Undoubtedly, the
applicants have crossed the lines of freedom of speech and expression
guaranteed under the Constitution of India. However, mere expression
of derogatory or objectionable words, may not be a sufficient ground
for invoking the provisions contained in section 124A of IPC. The said
provisions would apply only when the written and spoken words have
the tendency or intention of creating disorder or disturbance of public
peace by resort to violence. Therefore, though the statements and acts
of applicants are blameworthy, the same cannot be stretched too far to
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bring within the ambit of section 124A of IPC.
25.
Inviting attention towards timing of lodging the FIR, the
ld. Senior Counsel appearing for the applicant submits that the
applicants had dropped their plan to recite Hanuman Chalisa at the
private residence of the Chief Minister before registration of crime. It
may be noted that neither the applicants called anyone to bear arms
nor any violence was incited in general as a result of the speech
delivered by the applicants. In this view of the matter, I am of the
considered view that prima facie, decisive ingredients of section 124A
of the IPC are not made out at this stage.
26.
On 23.04.2022, the applicants were arrested by the
police.
On 24.04.2022, they were produced before the ld.
Metropolitan Magistrate, Bandra, Mumbai. On the same day, the ld.
Magistrate remanded the applicants to judicial custody upto
06.05.2022. It is pertinent to note that the prosecution did not raise
any grievance about denial of police custody of the applicants. Since,
23.04.2022, the applicants are languishing in jail.
27.
Having regard to the entire gamut of the circumstances, I
am of the considered view that this is a fit case to enlarge the
applicants on bail.
The apprehension of the prosecution can be
addressed by imposing stringent conditions on the applicants. With
this, I proceed to pass the following order:
ORDER
(1)
Bail Application No.962/2022 is hereby allowed.
(2)
The applicants namely Navneet Rana and Ravi Rana, who are
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accused in C.R. No.500/2022, registered with Khar Police Station,
Mumbai, for the offences punishable under sections 124A and
153A r/w section 34 of the Indian Penal Code, 1860 and sections
37(1) and 135 of the Bombay Police Act, be released on
executing P.R. Bond of Rs.50,000/ (Rupees Fifty Thousand only)
each with one or two solvent sureties in the like amount, subject
to the following conditions:
(i)
The applicants shall make themselves available for
interrogation by the Investigating Officer as and when
called for till investigation is over. The applicants shall
be given at least 24 hours prior notice through email
or their registered mobile numbers by the Investigating
Officer for the purpose of interrogation.
(ii)
The applicants shall not influence any witnesses or
tamper with the prosecution evidence in any manner or
try to interfere with the investigation.
(iii) The applicants shall not address the press (print or
visual media) on any of the subjects which relates to
this case.
(iv) The applicants and their sureties shall provide their
respective mobile numbers and correct address of
residence
alongwith
their
mobile
numbers
and
addresses to the Investigating Officer.
(v)
The applicants shall produce the proof of their identity
and proof of residence at the time of the executing the
Bail Bonds.
(vi) The applicants shall not commit similar offence while
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on bail.
(3)
Breach of any condition would entail cancellation of bail
forthwith.
(4)
The application stands disposed of accordingly.
Rahul
Nagnath
Rokade
Digitally signed
by Rahul
Nagnath Rokade
Date: 2022.05.05
11:57:50 +0530
(R.N. ROKADE)
Addl. Sessions Judge
Court Room No.54, Gr. Bombay.
Date: 04.05.2022.
Dictated on
: 2nd & 4th May, 2022.
Transcribed on
: 2nd & 4th May, 2022.
Signed by HHJ on : 05.05.2022.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE
05.05.2022
TIME
NAME OF STENOGRAPHER
11.57 a.m.
Bharat Kashinath Gaikwad
Name of the Hon’ble Judge
SHRI R.N. ROKADE
Addl. Sessions Judge
Court Room No.54, Gr. Bombay.
Date of Pronouncement of Judgment/ 04.05.2022
Order
Judgment/order signed by P.O. on
05.05.2022
Judgment/order uploaded on
05.05.2022