IN THE order passed on June 25, 2021, in the case- Aysha Sultana v. Union Territory of Lakshadweep, while granting anticipatory bail to the applicant, who is a film director, actor and model in Lakshadweep, Justice Ashok Menon, at the Kerala High Court, Ernakulam, has held that the statement made by her in discussion will have to be taken in its entirety and words cannot be taken in isolation to suggest motive. After considering the submissions made on both sides, and also the transcript of the discussion, The HC has stated that it would suffice to say that prima facie, the applicant did not have a malicious motive to subvert the Government established by law by merely using the strong word ‘bio weapon’ to express her vehemence in disapproval of the subject under discussion. In the opinion of the HC, her intention is clear from her criticism of the modification of the SOP (Standard Operating Procedure) introduced by the Administrator, forgoing the mandatory provision of subjecting the persons entering the island to quarantine. This allegedly led to exponential rise in the number of COVID-19 cases in the island, which was free of COVID-19 cases before that.

 

According to the HC, the decisive ingredient for establishing the offence of sedition under section 124-A IPC is the doing certain acts which would bring the Government established by law in India into hatred or contempt etc. In this case, there is not even a suggestion that applicant did anything as such against the Government of India. The other penal provision incorporated in the FIR against the applicant is an offence under section 153-A IPC. The ingredient of this offence is promoting feeling of enmity, hatred or ill will between different religious or racial or linguistic or regional groups and covers a case where a person by “words, either spoken or written, or by signs or visible representations” promotes or attempts to promote such feeling among two distinct groups. In its judgement of the case – Balwant Singh v. State of Punjab (1995) 3 SCC 214, the SC has held that mens rea is a necessary ingredient for the offence under section 153 -A. Considering the scope of sections 153-A and 505 of the IPC, the SC has held in the judgement of the case –Bilal Ahmed Kaloo v. State of A.P.- (1997) 7 SCC 431, as under: “The 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 at least two such groups or communities should be involved. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either of the two sections.”

 

In this case, the applicant has opposed the newly-introduced reforms by the Administrator and has sworn allegiance to the people of Lakshadweep in their protest against the reforms. There is no apparent indication in her statement, which amounts to imputations or assertions prejudicial to the national interest, nor does it propagate any class of persons against another group of persons. It is therefore doubtful whether the penal provisions of section 153-A would be attracted in this case.

 

The HC has observed that this is an application for anticipatory bail and not a petition for quashing the proceedings under section 482 CrPC neither is this Court finally deciding the prosecution case on its merits. While considering an application for bail, detailed discussion of the evidence and elaborate documentation of merits is to be avoided. This requirement stems from the desirability that no party should have an impression that his case has been pre-judged. Existence of a prima facie case is only to be considered. Elaborate analysis or exhaustive exploration of the merits is not required. Under the circumstances, the Court did not venture into a prolix discussion regarding the merits of the accusations made against the applicant. Prima facie the offences alleged by the prosecution are not attracted. The applicant is in the forefront of protest activities in Union Territory Archipelago of Lakshadweep, being organised against the draft Rules and the Revised SOP regarding the COVID-19 quarantine protocol to persons reaching the Lakshadweep issued by the new Administrator appointed for the islands. She is the sole accused in the FIR registered against her at the Kavaratti Police Station. She has been accused of sedition, an offence punishable under section 124-A and for making imputations, assertions prejudicial to the National Integration, an offence punishable under section 153-B of the IPC. The prosecution case as made out from a written complaint lodged by C. Abdul Khader, the State President of the BJP, Lakshadweep to the District Collector of the island, is that the applicant, a film director hailing from Chthalath island had in a channel discussion conducted by a TV channel –Media One, in Malayalam on June 7, 2021, between 7 pm and 8 pm made serious allegations about the Central Government using “biological weapon” against the people of the island.

 

The de facto complainant has pleaded for proper action against the applicant. On the basis of this complaint, the FIR was registered. The HC has pointed out in its order, in very clear terms that the applicant has no criminal antecedents. She is not likely to flee from justice. Her counsel has also stated that she has expressed her regret about use of the words ‘Bio weapon’. Custodial interrogation of the applicant and her incarceration in prison, particularly in these pandemic times may not be required. The prosecution has also not expressed any fear of her fleeing from justice or not co-operating with the investigation. Nor has the prosecution expressed its intention to subject the applicant to custodial interrogation. Further, there is no evidence that can be tampered with or witnesses to be influenced or intimidated. Consequent to granting of interim pre-arrest bail, the applicant was directed to appear before the Investigating Officer for interrogation and there is no report that she has not complied with that direction of the HC. Hence, the HC has allowed the application and granted to her pre-arrest conditional bail.