Ahmed Kaloo Vs. State of Andhra Pradesh  INSC 646 (6 August 1997)
ANAND, K. T. THOMAS
6TH DAY OF AUGUST, 1997 Present:
Dr. Justice A. S. Anand Hon'ble Mr. Justice K. T. Thomas S. k. Bhattacharya,
Adv for the appellant Guntur Prabhakar, Adv. for the Respondent and Appellant
in Crl. A. No, 81/97
following Judgment/Order of the Court was delivered:
J Bilal Ahmed Kaloo, a Kashmiri youth had a sojourn in the city of Hyderabad
and was involved in a prosecution under Terrorist and Disruptive Activities
(Prevention) Act, 1987, (for short 'TADA'). Though the Designated Court under
TADA he was convicted of Sedition under Section 124-A of Indian Penal Code and
was sentenced to imprisonment for life, besides being convicted of certain
other lesser offences for which a sentence of rigorous imprisonment for three
years was awarded under each count. This appeal has been preferred by the said
convicted person under Section 19 of the TADA.
case against the appellant in short is the following. Appellant was an active
member of a militant outfit called Al-Jehad which was formed with the ultimate
object of liberating Kashmir from Indian Union. With this in
mind appellant spread communal hatred among the Muslim youth in the old city of
Hyderabad and exhorted them to undergo
training in armed militancy and offered them arms and ammunitions. He himself
was in possession of lethal weapons like country-made revolver and live
cartridges. He was propagating among the Muslims that in Kashmir Muslims were
being were being subjected to attrocities by the Indian Army personnel.
the period when series of bomb-blasting occurred in the city of Hyderabad the police kept a close watch on
the activities of the appellant who was then staying in a room adjacent to Masjid-e-Niyameth
Kha-e-ali at Mir-ka-Daira at Haribowli in Hyderabad. He was arrested on 19-1-1994 and
after recording his confessional statement the police seized a revolver and two
cartridges which were produced by him.
investigation was completed he was challaned before the Designated Court at Hyderabad for offences under Sections 124-A, 153-A and 505(2) IPC,
and under Sections 3(3), 4(3) and 5 of the TADA, and also under Section 25 of
the Indian Arms Act.
above the Designated Court acquitted him of the offences under TADA but
convicted him of the offences under the Indian Penal Code and also under
Section 25 of the Indian Arms Act and was sentenced as aforesaid.
dealing with the offences of which appellant was convicted there is no question
of looking into the confessional statement attributed to him, much less relying
on it since he was acquitted of all offences under TADA. Any confession made to
a police officer is inadmissible in evidence as for these offences and hence it
is fairly conceded that the said ban would not wane off in respect of offences
under the Penal Code merely because the trial was held by the Designated Court for offences under TADA as well.
Hence the case against him would stand or fall depending on the other evidence.
decisive ingredient for establishing the offence of Sedition under Section
124-A IPC is the doing of certain acts which would bring the Government
established by law in Indian into hatred or contempt etc. In this case, there
is not even a suggestion that appellant did anything as against the Government
of India or any other Government of the State. The charger framed against the
appellant contains no averment that appellant did anything as against the Government.
Constitution Bench of this Court has stated the law in Kedar Nath Singh vs.
State of Bihar(AIR 1962 SC 955 at page 967) as
the expression 'the Government established by law' has to be distinguished by
law' has to be distinguished from the persons for the time being engaged in
carrying on the administration. 'Government established by law' is the visible
symbol of the State. The very existence of the State will be in jeopardy if the
Government established by law is subverted.
the continued existence of the Government established by law is an essential
condition of the stability of the State. That is why 'section', as the offence
in S.124A has been characterised, comes, under Chapter VI relating to offences
against the State. Hence any acts within the meaning of S.124A which have the
effect of subverting the Government by bringing that Government into contempt
or hatred, or creating disaffection against it, would be within the penal
statute because the feeling of disloyalty to the Government established by law
or enmity to it imports the idea of tendency to public disorder by the use of
actual violence or incitement to violence." As the charge framed against
the appellant is totally bereft of the crucial allegation that appellant did anything
with reference to the Government it is not possible to sustain the conviction
of the appellant under Section 124A IPC.
of the prosecution relating to offences under Section 153A and 505(2) IPC
consists of oral testimony of certain witnesses who claimed that appellant was
telling others that the Army personnel have been committing atrocities on
Muslims in Kashmir. Among those witnesses PW- 7, PW-7
and PW-13 were not cross-examined at all. Accepting their evidence, it can be
held without any difficulty that prosecution has established beyond doubt that
appellant was spreading the news that members of the Indian Army were indulging
in commission of attrocities against Kashmiri Muslims. So it is not necessary
to advert to the other evidence which only repeats what those witnesses said.
Hence the question to be decided now is whether those acts of the appellant
would attract the penal consequences envisaged in Section 153A or 505(2) of
153A was amended by the Criminal and Election Laws (Amendment) Act 1969 - Act No.XXXV
of 1996. It consists of three clauses of which clauses (a) and (b) alone are
material now. By the same amending Act sub-section (2) was added to Section 505
of the Indian Penal Code. Clauses (a) & (b) of Section 153A and Section
505(2) are extracted below:
Promoting enmity between different groups on grounds of religion, race, place
of birth, residence, language, etc., and doing acts prejudicial to maintenance
of harmony.- (1) Whoever (a) 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 commuity
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 (b) 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, or ..........................
be punished with imprisonment which may extend to three years, or with fine, or
with both." "505(2) Statements creating or promoting enmity, hatred
or ill- will between classes.- Whoever makes, publishes or circulates any
statement or report containing rumour or alarming news with intent to create or
promote, or which is likely to create or promote, on grounds of religion, race,
place of birth, residence, language, caste or community or any other ground
whatsoever, feelings of enmity, hatred or ill-will between different religious,
racial, language or regional groups or castes or communities, shall be punished
with imprisonment which may extend to three years, or with fine, or with
both." The common ingredient in both the offences is promoting feeling of
enmity, hatred or ill-will between different religious or racial or linguistic
or regional groups or castes or communities. Section 153A covers a case where a
person by "words, either spoken or written, or by signs or by visible
representations" promtes or attempts to promote such feeling. Under
Section 505(2), promotion of such feeling should have been done by making and
publishing or circulating any statement or report congaining rumour or alarming
Court has held in Balwant Singh and another vs. State of Punjab (1995 3 SCC 214) that mens rea is a
necessary ingredient for the offence under Section 153A.
is an equally necessary postulate for the offence under Section 505(2) also as
could be discerned from the words "with intent to create or promote or
which is likely to create or promote" as used in that sub-section.
main distinction between the two offences is that publication of the word or
representation is not necessary under the former, such publication is sine qua
non under Section 505. The words "whoever makes, publishes or
circulates" used in the setting of Section 505(2) cannot be interpreted
disjunctively but only as supplementary to each other. If it is construed
disjunctively, any one who makes a statement falling within the meaning of
Section 505 would, without publication or circulation, be liable to conviction.
the same is the effect with Section 153A also and then that Section would have
been bad for redundancy. The intention of the legislature in providing two
different sections on the same subject would have been to cover two different
fields of similar colour. The fact that both sections were included as a
package in the same amending enactment lends further support to the said
another support to the above interpretation can be gathered from almost similar
words used in Section 199 of the Penal Code as "whoever by
words.........makes or publishes any imputation......." In Sunilakhya Chowdhury
vs. H.M. Jadwet and another (AIR 1968 Calcutta 266) it has been held that the
words "makes or publishes any imputation" should be interpreted as
words supplementing to each other. A maker of imputation without publication is
not liable to be punished under that section. We are of the view that the same
interpretation is warranted in respect of the words "makes, publishes or
circulates" in Section 505 IPC also.
common feature in both sections being promotion of feeling of enmity, hatred or
ill-will "between different" religious or racial or language or
regional groups or castes and communities it is necessary that atleast two such
groups or communities should be involved. Merely inciting the felling of one
community or group without any reference to any other community or group cannot
attract either of the two sections.
result of the said discussion is that appellant who has not done anything as
against any religious, racial or linguistic or regional group or community
cannot be held guilty of either the offence under Section 153A or under Section
505(2) of IPC.
remains is the offence under Section 25(1B) of the Indian Arms Act. PW-1 was
the Superintendent of Police of Hyderabad City Zone (CID) during the relevant
time. He deposed to the fact that he made close watch on certain organizations
in the wake of series of bomb blasts which rocked that city for a while and on
receipt of some vital information about the activities of the appellant he
proceeded to the place where he was staying, accompanied by two Revenue officials(PW-22
and PW-23). He found out appellant in Room No.2 of the building annexed to Masjid-e-
Niyameth Kha-e-Ali at Mir-ka-Daira at Haribowli. PW-1 said that on being
interrogated appellant produced one revolver (MO1) and two cartridges (MO2
& MO3). Those articles were seized and later they were subjected to tests
in the Forensic Science Laboratory. PW-16, the Assistant Director of that
Laboratory has stated in court that the said revolver and cartridges were found
to be in perfect working condition and he issued a certificate to that effect.
who was incharge of management of the rooms in the building attached to the
aforesaid mosque said that appellant was staying in Room No. 2 of the building
during the relevant time. Trial court found that evidence acceptable and we
have no reason to dissent from it.
counsel for the appellant, however, assailed the prosecution case relating to
the said revolver and cartridges, on the ground that those articles were not
sealed after seizure and were left at the Police Station for a number of days
before they were sent to the Forensic Science Laboratory.
not impressed by the said contention and we may point out that appellant made
no allegation at any stage of the case that the revolver and the cartridges
were tampered with by the police. Not even a suggestion was made to any witness
in that direction. According to the counsel, since those articles were not
sealed there was the possibility of their being tampered with. Such and
academic possibility need not be consonance by us in this case because even the
accused has no case that they were tampered with. That apart, the particulars
of the weapon were given in the seizure memo and the same tallied with the
weapon on examination by the ballistic expert. There is no challenge to the
seizure memo admittedly prepared at the time of recovery of arms and amunition.
The identity of the weapon thus stands, established beyond any reasonable
Director of Forensic Science Laboratory conducted scientific test on the
articles and found them to be in working condition.
are, therefore, in agreement with the finding recorded by the trial court that
appellant was in possession of arms and amunition in violation of law and he is
thus liable to be convicted under Section 25(1B)(a) of the Arms Act. The
sentence awarded by the trial court (rigorous imprisonment for three years) in
the circumstances of the case needs no interference.
result, we partly allow this appeal and set aside the conviction and sentence
passed on the appellant for offences under Section 124A, 153A and 505(2) of the
Indian Penal Code. We confirm the conviction and sentence passed on him under
Section 25(1B)(a) of the Arms Act. The appellant shall be released from custody
fothwith if he has undergone the sentence passed on him under section 25 (1B)(a)
of the Arms Act and is not wanted in any other case.
parting with this judgment, we wish to observe that the manner in which
convictions have been recorded for offences under Section 153A, 124A and
505(2), has exhibited a very casual approach of the trial court. Let alone the
absence of any evidence which may attract the provisions of the sections, as already
observed, even the charges framed against the appellant for these offences did
not contain the essential ingredients of the offences under the three sections.
The appellant strictly speaking should not have been put to trial for those
offences. Mechanical order convicting a citizen for offences of such serious
nature like sedition and to promote enmity and hatred etc. does harm to the
cause. It is expected that graver the offence, greater should be the care taken
so that the liberty of a citizen is not lightly interfered with.