Praying For Departed Soul Of Terrorist Who Was Killed In Police Encounter Cannot Attract Offence U/S 153B IPC: Himachal Pradesh HC
The Himachal Pradesh High Court observed that praying for the ‘departed soul’ of a terrorist who was killed in a police encounter would not attract the provision under Section 153B of the Indian Penal Code.
The Bench remarked that the student accused of making a social media post on Facebook did not incite public disorder or instigate members of society or any particular religion to protest against the Administration. The Court explained that the student simply made a prayer writing he “misses Shakoor Bhai” for a militant killed in a Police encounter and did not instigate people to protest against the Administration or Police authorities.
A Single Bench of Justice Sandeep Sharma observed, “Apart from aforesaid words used by petitioner, there is nothing in the post, suggestive of the fact that after making such comment, petitioner made any attempt, if any, to instigate his colleagues or other members of the society to condemn the action of State, inasmuch as terrorist named Shakoor Bhai was killed in Police encounter. Precisely, the case of the petitioner as has been highlighted in the petition is that no case much less under Section 153B of IPC is made out.”
Advocate Prabha Yadav represented the petitioner, while Addl. AG Rajan Kahol appeared for the respondent.
A 2nd-year student (petitioner) of Chitkara University from Srinagar had allegedly posted an anti-social remark on social media which created a tense situation on his college campus. The comment read as, “Allah App K Shahdat Qabool Karay…..In the Hearts of Green Berds….Missing u Bhai….”
The petitioner filed a petition under Section 482 of the Cr.P.C. to quash the FIR registered against him under Section 153B of the IPC for propagating feelings of enmity or hatred and ill-will between the members of society.
“If the comment made by the petitioner on Facebook is perused juxtaposing provisions contained under Section 153B of IPC, there appears to be merit in the contention of Ms. Prabha, learned counsel for the petitioner that at no point of time, attempt, if any, ever came to be made on behalf of the petitioner to cause feeling of disharmony or enmity, hatred or ill-will between members of the society,” the Bench remarked.
The Court noted that there was no doubt that the petitioner had attempted to glorify the acts and deeds of a militant, but “such attempt or effort, if any, cannot be said to be a crime/offence, as is covered under Section 153B of IPC,” the Court stated.
The Bench explained, “Had petitioner after death of militant named hereinabove instigated people to lodge protest against the Administration and other Police authorities, or had he made appeal to others to join the movement, he could be said to have been committed offence under Section 153(B) of IPC.”
Consequently, the Court held that the petitioner “while making comment upon the post through his Facebook account, has only made prayer for the departed soul… he could not have been charged under Section 153B, especially when after having made prayer for departed soul, petitioner nowhere incited or made an endeavor to create public disorder.”
Accordingly, the High Court allowed the petition and quashed the FIR registered against the petitioner.
Cause Title: Tahseen Gul v. State of Himachal Pradesh (Neutral Citation: 2024:HHC:3620)
Appearance:
Petitioner: Advocates Prabha Yadav and Mohd. Arshad
Respondent: Addl. AG Rajan Kahol, Vishal Panwar and B.C. Verma; Dy. AG Ravi Chauhan
