SRI SHASHIDHAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) These petitions are heard and disposed of together as there are some common features in the same.

(2.) It is stated that one, Jayanand, Sub -Inspector, had lodged a complaint with the Yelehanka New Town Police Station, as on 2.6.2016, to the effect that the petitioner in Crl.P 5075/2016, who was an erstwhile police constable dismissed from service, and who had formed an association called 'Akhila Karnataka Police Mahasangha' , was said to be spearheading a movement to instigate the lower rung of the police force to act against the present elected government. That he along with the first of the petitioners in the second of these petitions, Crl.P 5095/2016, and certain other persons, including the second of the petitioners in the said petition, were conspiring to instigate the police force to bring hatred and disaffection against the State Government amongst the general public, with an aim to destabilize and bring down the present government. It was said to have been claimed that the petitioners had made public speeches, and used the electronic social media such as, Facebook, Whatsapp and so on, to create hatred and excite disaffection against the State Government, among the police force and the public at large. The Petitioner in the first of these petitions, Shashidhar, is said to have a Facebook Account, on which he had posted provocative photographs with captions like ' Sippayee Dungay'. He is said to have addressed messages to the rank and file of the Karnataka Police force to go on a mass leave on 4.6.2016, through out Karnataka State and to join hands in their war against the Government and the Police Department. It transpires that the State Government, in order to avoid an unwelcome situation, is said to have issued a notification dated 31.5.2016, declaring that the Karnataka State Police Force as an essential service under the Karnataka Essential Services Maintenance Act, 2013. However, it is claimed that this did not deter the petitioners from continuing with their onslaught through the various media to instigate and incite the members of the Police force not to buckle. It is pursuant to such complaint that the respondent - Police are said to have registered an First Information Report in Crime no.160/2016, for offences punishable under Sections 166, 109, 120B, 124 -A of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity), Section 5 of the Essential Services Management Act, 1981, Section 4 of the Police (Incitement to Disaffection) Act, 1966 and Section 4 of the Police Forces (Restriction of Rights) Act, 1966. The petitioners' applications for bail before the court below have been dismissed. It is the case of the petitioners that they are clueless as to why they have been apprehended and taken into custody. And hence the present petitions.

(3.) Shri Ashok Harnahalli, Senior Advocate, appearing for the counsel for the petitioner in Crl.P 5075/2016, would contend that in order to attract Section 124 -A of the IPC, there must be an intention to create disorder or to incite people to violence either by words, spoken or written, or by signs, or by visible representation, or otherwise brings or attempts to bring into hatred or contempt, or attempts to excite disaffection towards the government established by law. It is pointed out that the complaint does not indicate that the petitioners had incited people in order to create hatred against the government. It is contended that in order to invoke Section 109 IPC, it must be demonstrated that there was an offence committed as a consequence of abetment or was committed as a consequence of instigation or in pursuance of a conspiracy or had aided the commission of the offence - to constitute abetment. There is no evidence of any of the ingredients to constitute the offence of abetment. It is contended that the provisions of the Essential Services Maintenance Act, 1981, the Police (Incitement to Disaffection) Act, 1981 and the Police Forces (Restriction of Rights) Act, 1966 are only applicable to persons who are members of the force of the State. As the same are not applicable to the petitioners, it is inexplicable that the petitioners are taken into custody for the alleged commission of offences under the said Statutes. Similarly, Section 166 IPC, would apply to a person being a public servant, in that, where a public servant knowingly disobeys any direction of the law with an intention to cause injury to any person, then Section 166 IPC would apply. Even according to the complaint, the petitioners are not serving members of the Police force. Hence, the case against the petitioners is not maintainable.