Jonathan Nitin Brady
Vs. State of West Bengal  INSC 1535 (10 September 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL No. 1444 OF 2008
[Arising out of S.L.P. (Crl.) No.6864 of 2007] Jonathan Nitin Brady .....
Appellant Versus State of West Bengal .....
Lokeshwar Singh Panta, J.
in this appeal by special leave is to the order dated 29.10.2007 passed by the
High Court of Calcutta in C.R.M. Petition No.11072/2007. By the impugned order,
the High Court has rejected the application of the 2 appellant for the grant
of pre-arrest bail filed under Section 438 of the Code of Criminal Procedure.
stated, the facts of the case are that the appellant works as a Radio Jockey at
New Delhi with the Radio Channel `Red FM 93.5', a channel owned by Digital
Radio (Delhi) Broadcasting Limited. During the course of regular morning show
called "Morning No.1" [hereinafter referred to as `the Show'], that
was broadcasted only in New Delhi from 7-11 a.m., on 24.09.2007, the appellant
discussed one Mr. Prashant Tamang's victory in the Tele- Series called
"Indian Idol" telecasted on Sony Entertainment Television channel.
25.09.1997, it came to the appellant's knowledge through media reports that
sentiments of a certain section of the public in West Bengal were purportedly
hurt given to misinterpretation of the above-said discussion on the said show.
27.09.1997, certain fans of Mr. Prashant Tamang, including one Mr. Dinesh Gurung,
filed a written complaint which culminated in registration of FIR 3
No.125/2007 under Section 153A of the Indian Penal Code [for short `IPC']
against the appellant in Sadar Police Station, Darjeeling. The remarks
attributed to the appellant in the FIR read as follows:- "If Chowkidars
are the Indian Idols (meaning Prashant Tamang), then wherefrom we are to obtain
was alleged in the FIR that the comments made by the appellant during the
course of the broadcast on 24.09.2007 promoted ill-feelings amongst different
races and communities in India and that the activities of the appellant were
prejudicial to the communal harmony. On the basis of the misinterpretation of
appellant's remarks as reported in certain sections of the media, the complainants
also alleged that the appellant had deliberately insulted the
"Gorkhali/Nepali" community and hence he was liable to be prosecuted
for an offence under Section 153A of IPC. In furtherance of FIR No.125/2007,
the Inspector-in-Charge, Sadar P.S. Darjeeling (W.B.) wrote a letter dated
01.10.2007 to 4 learned Chief Judicial Magistrate, Darjeeling, praying for
issuance of Warrant of Arrest against the appellant. On 06.10.2007, the learned
Chief Judicial Magistrate, Darjeeling, issued warrant of arrest of the
appellant apprehending his arrest in connection with the aforesaid case
approached the High Court for grant of anticipatory bail on the ground that he
has never made the statements being attributed to him by the various media reports
and produced copy of the transcripts of the Show. He stated that the requisite
mens rea for constituting an offence under Section 153A of IPC was missing as
the entire Show was based on humour and satire. The appellant contended that he
had not made any implicit or explicit statements portraying any community in
bad light or disrespect.
26.09.2007 during the course of the Show `Morning No.1', the appellant tendered
an apology for any unintentional hurt caused to the sentiment of any community
owing to any misinterpretation or wrongly portrayal of his remarks. It was
stated that during the 5 said broadcast, Mr. Prashant Tamang appeared on the
Show vide a telephonic interview and himself clarified the misunderstanding and
stated that in his opinion the appellant had not made any derogatory remarks.
Radio Channel of which the appellant is an employee issued a Press Release on
27.09.2007 congratulating Mr. Tamang on his achievement and also quoting his
specific remarks regarding the entire sequence of events being just
misunderstanding. The said Channel further published an advertisement saluting
Mr. Tamang's victory on 28.09.2007 and reaffirming its commitment to the cause
of promoting musical talent in North-East India. Vide a Press Release dated
29.10.2007, the Channel further tendered a formal public apology for any
inadvertent hurt that might have been caused to any community or public in
was in these circumstances that the appellant apprehending his arrest
approached the High Court for grant of anticipatory bail. The High Court while
rejecting the application of the appellant made the following order:
6 "We have
carefully heard the submissions made at the Bar. We have also perused the
materials in the Case Diary with utmost circumspection. We find from the
materials collected by the Investigating Agency that the elements of Section
153A of the Indian Penal Code have satisfactorily been made out.
We further feel that
tendering of the apology, as submitted by the learned Senior Counsel for the
petitioner, in our view, cannot modify the gravity of the situation nor whittle
down the impact of the remarks made by the petitioner. The exact words spoken
by the petitioner squarely attract the provision of Section 153A of the Indian
Penal Code and we are also of the firm view that the same was uttered with
necessary mens rea in mind.
We cannot be
oblivious of the situation that has been pointed out on behalf of the State
which has arisen as a fall out of such remark made by the petitioner having
widespread repercussion on the local area, from where Shri Prashant Tamang
Keeping in mind the
aforesaid situation, we are of the considered view that this is not a fit case
for entertaining the application under Section 438 of the Code of Criminal
reject the same."
the appellant has approached this Court by way of special leave petition
challenging the correctness and validity of the order of the High Court.
have heard Mr. U. U. Lalit, learned senior counsel for the appellant and Mr.
Tara Chand Sharma, Advocate, for the respondent-State.
prima facie scrutiny of the material on record, we are of the view that in the
backdrop of the facts and circumstances narrated hereinabove it is a fit case
where the appellant is entitled for the grant of anticipatory bail.
We do not see any
satisfactory and convincing reason for custodial interrogation of the appellant
for the alleged offence registered against him. The appellant can be
interrogated by the Investigating Officer without taking him in custody. We,
however, do not propose to embark upon the merits of the case at this stage.
accordingly, allow the appeal and order that in the event of the arrest of the
appellant for the alleged offence, he shall be released on bail subject to the
following conditions:- 8 (i) The appellant shall furnish personal bond in the
sum of Rs.10,000/- with one solvent surety of the like amount to the
satisfaction of the Chief Judicial Magistrate, Darjeeling, or the Investigating
(ii) The appellant
shall make himself available for interrogation as and when he is so directed by
the Investigating Officer by sending written Hukumnama to him.
(iii) The appellant
shall not directly or indirectly make any inducement, promise or threat to any
witness acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court.
have noticed that the High Court has made certain observations in its
above-extracted order, which, in our opinion, are uncalled for and unwarranted
at this stage of the case. The High Court ought not to have made the said
observations at the preliminary stage of the 9 investigation of the case, which
may have caused prejudice to the defence of the appellant during the trial of
the case. We, therefore, make it clear that the said observations shall not be
taken into consideration by the trial court at any stage of the proceedings of
the result, this appeal is allowed in the above-said terms and conditions.
(R. V. Raveendran)
(Lokeshwar Singh Panta)