Merely Inciting Feelings of One Community Without Any Reference To Any Other Community Cannot Attract Section 153A IPC: Kerala HC

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By Anurag Mishra

While granting anticipatory bail to the accused who were alleged to have been involved in a conspiracy which resulted in demolishing of a film set constructed at Kalady River side, depicting a church, at the precincts of Mahadev Temple. J. Ashok Menon observe that the film set though a temporary structure was being used a place for custody of property like generator, etc which was allegedly stolen and therefore, the provisions of Section 454 IPC were being attracted.

153A of the Indian Penal Code is a provision which maintenance the harmony between different religious, racial, language or regional groups or caste or communities. Kerala High Court in its decision has concluded that the said provision will not be attracted if any reference to any other community or group was not made, nor merely inciting the feelings of one community will lead to that.

However, while analyzing the ingredients of section 153A it was held that the feeling of enmity, hatred, ill-will between the different religious or racial or linguistic or regional group or caste or communities and the promotion thereof is essential.  It is pertinently important to know that mens rea which means an intention is required to promote the feeling of enmity or hatred between different classes of people.  U/S 153A IPC the intention to cause disorder or incite the people for violence is sine-qua-non of the offence. It is very important to attract the said provisos that at least two groups or communities should be involved.

The General Secretary of Antharashtra Hindu Parishad, Pradeep R.S., the 8th accused was said to make a comment on Facebook with regard to the pride of A.H.P. or at best the Hindu Community. However, the said comments were only referring to Mahadev Temple. Therefore, not including any community or group and ultimately not resulting an offence punishable u/s 153A. It was also stated that a custodial interrogation of the applicant is not necessary when it is prima-facie elucidated that applicant will corporate with the investigation.

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