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Key Takeaways

  • Expression of discontent towards the administration of government without exciting disaffection or disloyalty towards the state is not an offence.
  • In proving an offence of conspiracy, a chain of events must be shown which portrays the guilt of the accused.
  • Possession of certain books and newspaper clippings will not be considered as incriminating evidence.
  • Oral evidence of witnesses who have seen or heard such alleged fact is necessary.

Background

Seven people were accused of several criminal offences.Among them were accused no.6 and 7 who were son and father respectively. Although initially all of them were tried in one case, the Magistrate could not obtain the presence of the first five accused and hence the case was split up and the trial was committed only with respect to accused person 6 and 7.

The father and sonwere residing in Kuthlooru village were accused of being part of a conspiracy with other accused persons, who were members of the banned organization Communist Party of India (Marxist-¬Leninist) – People's War, to wage war against the established state.

It was the primary case of the prosecution that the two accused concealed and harbored the other accused in the tribal village. It was also alleged that the father and son encouraged and incited the tribal people of their village to join the objective of such Naxal activities.

After obtaining information from credible source, the Anti Naxal Force stated that it conducted search in the house of the accused in presence of other witnesses. It was stated that the seized articles from the house were in the nature of materials which would be used by a Naxal or terrorist organization to create unrest and incite violence in the society.

Thereafter, charges under Section 120B and 124A of IPC and Section 19 and 20 of Unlawful Activities (Prevention) Act, 1967 were framed.

Provisions Involved

  • Section 120B of the Indian Penal Code

This section provides for punishment for persons who is a member in a conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for two years or more shall be punished as if he had abetted such offence. Section 120 A defines criminal conspiracy.

  • Section 124A of the Indian Penal Code

This section provides that if any party 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 a 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.

Explanation one to this section provides that the word “disaffection” shall also include disloyalty or enmity towards the established state.

The second explanation to this section provides that expressing disapproval towards the actions of the state to obtain their needs lawfully without creating a feeling of hatred or disaffection towards the state do not constitute an offence under this section.

The third explanation provides that expressing discontent towards the administration or other measures of the government does not constitute an offence under this section provided that it does not excite hatred or disaffection towards the established state.

  • Section 19 of the Unlawful Protection Activities (Prevention) Act, 1967

This section states that if any person or persons voluntarily harbors or attempts to harbor a person whom he knows to be a terrorist, he shall be punished with imprisonment for not less than 3 years and also extend for life with also a fine.

An exemption to this section is provided for the spouse of the harbored or concealed terrorist.

  • Section 20 of the Unlawful Protection Activities (Prevention) Act, 1967

This section provides for punishment for person who are members of a terrorist group or organization which may extend to life imprisonment for life with fine.

Submissions

Before the Additional District and Session Judge, the Public Prosecutor argued that although the examined witnesses who were residing in the village did not agree with the prosecution case, the other witnesses who were police officers themselves should be considered. It was also contended that only because they were police officers, their statements must be given due introspection and should not be rejected. Hence, the accused need to be dealt with in accordance of the relevant laws. Further, the material materials collected and recorded from the house of the accused is in nature of materials used by Naxals and terrorists and brings out a prima facie case against the accused.

The counsel for the accused argued that the materials recorded from his house were household articles and some newspaper clippings and a book about Bhagath Singh. Hence, it was contended that these were not in anyway instigating or provoking sentiments against the sovereignty of the nation. It was also put forth that one of the accused was pursuing journalism and he had written a letter demanding fulfillment of the needs of the tribal people which was being ignored and also stated in the letter that failing which the tribal people would boycott the coming by-election. Seeing this, the police had implicated the accused in a criminal case. Hence, they pleaded that they were innocent.

Findings of the court

This court clarified that since the prosecution heavily relied on the material evidence collected from the father and sons’ house to prove the allegation that they were part of the criminal conspiracy and also harbored members of the banned group, it was important to evaluate and inspect the seized possessions.

The court noted that the prosecution stated that they had seized possession of three mobile phones from the accused but the call records from these mobile phones were not produced before this court. The court observed that in absence of any incriminating material with respect to the alleged mobile phones, the prosecution case does not have merit and mere seizure of mobile phones does not help prosecution’s case.

It was also noted that the Mahazar was drawn by the police, who was the prosecution witness 22 herein, at the hostel where the accused was residing. The panch witness to the panchanama did not support the statement and the case of the prosecution.

Further, at the place at which the alleged Naxal activities were conducted, no materials were seized. Again, the panch witness to the panchnama did not support the case of the prosecution.

After a careful examination of the entire list of articles seized, the articles appended where articles of daily household use. The letter and writings of the accused with respect to boycotting of the election, the court observed that these were genuine concern of the accused representing the problems of the tribal people of that region which were not taken up by the government representatives of the region. Hence, such writings cannot indicate that he belongs to Naxal or a terrorist group. Therefore, this does not support the case of the prosecution.

The materials appended also contained a book about Bhagat Singh and newspaper clippings. The court also chided that possessing a book about Bhagat Singh or newspaper clippings are not against any law or constitute any offence. Even if such newspaper clippings or the book is of provocative or instigative in nature, the accused did not author or publish these and are not answerable for the same.

The court reiterated that for proving the case of the prosecution that the accused persons were involved in a criminal conspiracy or members of a banned organization or they were harboring members of such organization, the oral evidence of witnesses who have either seen or heard such things pointing towards the alleged facts is significant and necessary.

However, cross-examination of witnesses other than the police officer revealed that none of them supported the case of the prosecution. The court exclaimed that if such alleged Naxal activities are to have been conducted, at least one of one of the people from the village should have provided spoken about the activities. Not even one witness stated that they were involved in activities which would attract provisions of an offence of sedition.

Hence, the court held that the prosecution did not convince that the accused persons before this court had incited feelings of hatred and disaffection towards the sovereignty of the established government. Therefore, this court acquitted the accused of the alleged charges.

A Brief Analysis

Sedition laws around the globe are a topic of constant debate regarding its relevance in a democratic nation. Many people frown upon these as an obstacle to free speech and incompatible in a democratic state and validity of such laws are a topic of constant discussion. The lingering fear of possible misuse of these sections by the state to overpower opposition and stifle dissent is a prevalent public opinion.

This can be majorly attributed to the heuristic bias of the past in colonial India wherein provisions of sedition laws were used to suppress political dissent in India. In one of the earliest cases documented, Queen Empress V. Jogendra Chunder Bose (1891), Bose was charged with Section 124A for criticizing a bill of the British Empire and the economic impact of the British on India.

Even during the Constitutional Assembly debates, there was vehement opposition against inclusion of sedition in the Constitution. The opposition claimed that inclusion of sedition in Constitution would be a reflection of the colonial times and should never see light of the day in free India.

Shri Rohini Kumar Chaudhury during the Constituent Assembly debate said that:

“Mr. Vice-President, Sir, I must congratulate the House for having decided to drop the word "sedition" from our new Constitution. That unhappy word "sedition" has been responsible for a lot of misery in this country and had delayed for a considerable time the achievement of our independence.” (Constituent Assembly of India Debates (Proceedings) – Volume VII)

Hence, it was unanimously decided that the word sedition should not be included in the Constitution of India. Currently, Section 124A of the IPC embodies this.

Hence, the court, in evaluating a case of sedition or seditious conspiracy, will always be on tightrope as it has to balance both the freedom of an individual and to punish those who try to jeopardize the stability of an established state by exciting a feeling of disaffection or disloyalty.

The courts in several cases have and have been trying to attain this balance. In Balwant Singh V. State of Punjab (1995), the Supreme Court held that raising slogans which do not excite disaffection cannot attract Section 124A of IPC; rather some overt act is necessary to attract such provisions. In Indra Das V. State of Assam (2011), it was also held that a mere membership with a banned organization does not incriminate a person unless he is engaged in inciting people or tries to create any disorder in the functioning od the state. In Yogesh @ Sachin Jagadish Joshi V. State of Maharashtra (2008), it was reiterated that the circumstantial evidence relied upon must provide a chain of events pointing towards only one possible hypothesis from which the guilt of accused can be inferred. In Kedar Nath V. State of Bihar (1962), the Supreme Court held that the words “government established by law” in Section 124A of IPC is to be interpreted and distinguished from the people who for the time being are engaged in administration of the state. The ruling party is just the helmsman of the state.

It is also acknowledged that the position of the prosecution in proving such conspiracies is also practically difficult as a conspiracy is planned in secrecy. This makes it near impossible to provide absolute and direct evidence regarding the same. Hence, it is either proved by circumstantial evidence or should be inferred from the actions of the accused in pursuance of such alleged conspiracy.

For extensive discussions on sedition laws in India refer to our previous posts here and here.

Conclusion

The seized possessions from the house of the accused person were articles of daily household use which does not help in inferring any motive to conspiracy to wage war against the established state. The mobile phones did not prima facie help the case unless any incriminating data from the mobile phone supporting the case of the prosecution was shown. None of the residents of the village supported the case of the prosecution. There was no proper establishment of chain of events or the possessions seized from the house of the accused did not help the case of prosecution in proving that the accused was part of a conspiracy to wage war against the state.

Case citation: Sessions Case No. 125/2017

Court: III Addl. District & Sessions Judge, Dakshina Kannada, Mangaluru.


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