Sanchayita Lahkar

The High Court of Gauhati, Single Bench of Justice Pranjal Das, allowed a criminal petition seeking quashing of proceedings arising from an FIR registered under Section 153A/34 of the Indian Penal Code. The Court directed that the proceedings arising from Sivasagar Police Station Case No.1008/2016 be quashed in their entirety. The Court found that the allegations in the FIR did not fulfill the essential ingredients required under Section 153A IPC and, therefore, the continuation of the proceedings was not legally sustainable. The petition was allowed, and the proceedings were brought to an end through judicial intervention.

The proceedings stemmed from an FIR dated 11.11.2016, which resulted in the registration of Sivasagar Police Station Case No.1008/2016 under Section 153A/34 of the IPC. The FIR was lodged by the informant, identified as the President of the All Assam Muslim Students Union (AAMSU) Sivasagar. The petitioner, identified as a journalist, approached the High Court under Section 482 of the Code of Criminal Procedure seeking quashing of the FIR on the ground that the allegations did not constitute an offence under the provisions invoked.

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It was recorded that the petitioner’s impugned act arose from a newspaper publication dated 08.11.2016 in "Dainik Janambhumi". The publication was presented before the Court along with its English translation. The counsel for the petitioner submitted that the newspaper report was a product of journalistic research concerning issues of religious fundamentalism, demographic threats posed by illegal migrants from a neighboring country, and militant activities connected with such fundamentalism. The publication was argued to be within the scope of journalistic reporting and not intended to incite communal disharmony.

The informant alleged that the report was aimed at creating disharmony between communities in an area known for social harmony and was an attempt to disturb communal peace. This led to the initiation of the criminal process. The petitioner sought quashing by invoking the Court’s inherent powers under Section 482 CrPC, relying on established precedents including the leading judgment in State of Haryana v. Bhajan Lal, 1992 SCC (Cri.) 426. The petitioner’s counsel also cited Patricia Mukhim v. State of Meghalaya (2021) 15 SCC 35 and Bilal Ahmed Kaloo v. State of A.P (1997) 7 SCC 431, contending that the FIR did not disclose the requisite elements under Section 153A IPC.

The Public Prosecutor for the State was heard in opposition to the petition. Respondent no.2, despite service of notice as per office note dated 20.03.2025, did not appear before the Court.

The Court, before examining the facts, reproduced the text of Section 153A IPC in full, which defines and criminalizes promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, and similar categories. The section requires that such acts must be prejudicial to the maintenance of harmony, disturb public tranquility, or be carried out with the intention of causing enmity or violence between groups. The offence carries punishment extending up to three years, or up to five years if committed in places of worship.

The Court noted the established legal position that in order to attract liability under Section 153A, the prosecution must demonstrate mens rea and that the alleged act must involve at least two groups or communities. The law further requires that there must be an intention to incite people to violence or promote enmity between communities. It was further noted that Section 505(2) IPC, often invoked in similar contexts, requires publication of statements or reports containing rumours or alarming news, which was not applicable in the present case.

The Court extensively referred to case law to determine the essential ingredients of Section 153A IPC. Justice Pranjal Das observed, “In the leading judgment of the State of Haryana Vs. Bhajan Lal, reported in 1992 SCC (Cri.) 426, which has laid down the foundations of law governing the field of quashing in exercise of inherent powers; various illustrations and criteria have been given for exercising such powers; one of which is that if the allegations in the ejahar prima facie do not make out any offence, then the said FIR can be quashed in exercise of inherent powers.”

The judgment further recorded, “Only where the written or spoken words have the tendency of creating public disorder or disturbance of law and order or affecting public tranquility, the law needs to step in to prevent such an activity. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A IPC and the prosecution has to prove the existence of mens rea in order to succeed.”

In discussing the precedent of Bilal Ahmed Kaloo, the Court recorded, “Mens rea was held to be a necessary ingredient for the offence under Section 153A and Section 505 (2). The common factor of both the sections being promotion of feelings of enmity, hatred or ill will between different religious or racial or linguistics or religious groups or castes or communities, it is necessary that at least two such groups or communities should be involved.” The Court added that merely inciting feelings of one community without reference to another community could not attract Section 153A IPC.

The judgment also cited the principle from Ramesh v. Union of India, observing that “words used in the alleged criminal speech should be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.”

Applying these principles to the case, the Court noted, “A careful perusal of the newspaper report reveals that it was a kind of write up based on journalistic research and highlighting an issue of religious fundamentalism in the concerned area; demographic threat posed by illegal migrants from a neighboring country and also some militant activities associated with such fundamentalism.”

Further, it was observed, “Upon perusal of these materials and keeping in mind the core principles laid down by the Hon’ble Supreme Court regarding the essential ingredients of Section 153A of IPC – I am of the considered view that the ejahar does not meet the criteria laid down by the aforementioned case laws and that it cannot be said that the petitioner, as the accused, intended to create enmity or incite violence between different population groups with the requisite mens rea.”

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Justice Das stated, “Needless to say that it is the core duty of journalism to raise burning issues, which matter to society. Raising concerns about illegal migrants, religious fundamentalism, militant activities and demographic threats to the indigenous people cannot, by itself, be construed as an attempt to create enmity between groups or to incite violence.”

The Court finally noted, “Upon examining the newspaper report that gave rise to the allegations in the ejahar - I find that, prima facie, the petitioner accused as a journalist has not cast aspersions on any ethnic or religious group per se.”

The Court concluded by quashing the proceedings. Justice Pranjal Das recorded, “Accordingly, in light of facts and circumstances and in the backdrop of the aforesaid discussion – I find merit in the petition. The proceedings of Sivasagar P.S Case No.1008/2016 under Section 153(A)/34 of the IPC, arising from ejahar dated 11.11.2016 lodged by respondent no.2, are hereby quashed in their entirety.”

The judgment further directed, “The instant criminal petition stands allowed and disposed of on the aforesaid terms.”

Advocates Representing the Parties

For the Petitioner: Ms. A. Neog, Mr. K. Goswami, Mr. P. K. Goswami, Ms. J. Gogoi, Mr. A. Chandalia

For the Respondents: Mr. K. Baishya, Additional Public Prosecutor, Assam

Case Title: Kongkon Borthakur v. The State of Assam and Anr.

Neutral Citation: 2025: GAU-AS:10817

Case Number: Crl.Pet./988/2016

Bench: Justice Pranjal Das