Thursday, December 3, 2020

Kerala HC says section 153A cannot be invoked against Hindu leader who wrote about a ‘Church film set’ demolished inside a Temple area: Here are details

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— Consider reading the article Kerala HC says section 153A cannot be invoked against Hindu leader who wrote about a ‘Church film set’ demolished inside a Temple area: Here are details on OpIndia website —

In a significant observation, the Kerala High Court has ordered that merely inciting the feelings of one community or group without any reference to any other community or group cannot attract the provisions of section 153A of Indian Penal Code.

According to the reports, granting anticipatory bail to some of the accused involved in the alleged demolition of a film set constructed depicting a Church at the precincts of the Mahadeva Temple at Kalady, Justice Menon observed that real intention to incite one group or community against another is absolutely essential to register a case under Section 153A of IPC.

“Real intention to incite one group or community against another is absolutely essential. It is necessary that at least two groups or communities should be involved. Merely inciting the feelings of one community or group without any reference to any other community or group cannot attract the provisions of S.153A IPC,” the Kerala High Court observed.

The IPC section 153A punishes persons who indulge in wanton vilification or attacks upon the religion, race, place of birth, residence, language etc of any particular group or class or upon the founders and prophets of a religion.

On May 24, a film set of a Malayalam movie ‘Minnal Murali’ was allegedly vandalized by some miscreants in Kalady, Ernakulam. The filmmakers had constructed a set depicting the church near the Mahadeva temple near Kalady riverbanks. A group of miscreants had allegedly demolished the church accusing the filmmakers of constructing it without permission. 

The filmmakers had alleged that some members of Rashtriya Bajrang Dal’s Ernakulam unit, an offshoot of Antarashtriya Hindu Parishad (AHP), was behind the incident.

The Kerala High Court was hearing a petition filed against one individual named Pradeep RS, the General Secretary of Antharashtra Hindu Parishad (AHP). Reportedly, Pradeep had published a post on his Facebook page after the incident admitting his role in the act of demolition by the members of his organisation and justified it.

In his bail petition, Pradeep had contended that he was innocent and was not even present at the spot during the incident. He had further asserted that his Facebook post did not in any way promote enmity between different groups on the grounds of religion as no other religion has been referred to in the post.

However, Kerala government opposed the bail plea of the Hindu leader claiming that the intention of the accused was to ‘poison the minds of Hindus of the locality against the Christians’ stating that a Church or something resembling a Church had come up in the precincts of Mahadeva temple, which may probably be permanently snatched away by the members of the other religion. 

While considering the bail application, the Kerala High Court made comments on the maintainability of offences under Sections 153-A and 454 IPC to point out that the comments made by the accused only refers to the Mahadeva temple and not permitting such activities of construction within the precincts of the temple.

The court added, “Therefore, prima facie, the offence punishable under S.153-A is not attracted to the facts of the case. (See also Bijumon v. State of Kerala 2018 (4) KHC 73.) At best, the Facebook post would amount to an admission regarding the involvement of the 1st accused as the President of the Ernakulam Division of Bajrang Dal and his supporters.”

The High Court also noted the contention of the Hindu leader that the film set is not a house or a place of worship to attract the ingredients of “House-trespass” under Section 442 IPC.

“A reading of the aforesaid provision and in particular the expression “in building used as a place for custody of property”, I am of the view that a film set, though a temporary structure, was being used as a place for custody of property like generator, etc; which was allegedly stolen. Since the definition also includes a tent, and does not state that it should be a permanent structure, even a temporary film set would fall within the definition of a house which in this case, can be said to be a structure used for custody of property. Hence, I have no doubts about Section 454 getting attracted in this case,” observed Justice Ashok Menon.

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