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A Haryana Court recently dismissed the bail application of an accused in act of hate speech qua instigating abduction and killing of girls and persons of a particular religious community.

The Judicial Magistrate Ist Class (JMI) Mohd. Sageer while dismissing the bail application being devoid of any merit observed that,

“The alleged offenses committed by the accused person are very serious and severe in nature. The consequences of these kinds of activities may be far more dangerous and it may translate into communal violence.”

The Learned counsels for the applicant-accused Rambhagat Gopal Sharma submitted in the bail application that,

• The applicant is innocent and have been falsely implicated in the present case.
• The case is false and concocted and applicant has not committed any offence.
• The whole story of the prosecution is cooked up and false one and there is no truth in the FIR and the video recording is false and fabricated one and the applicant-accused has no concern with the video.
• The trial will take long time to conclude and also that the accused is of young age and custody of applicant is not required.

It must be noted that the video clip in question before the Judge was a recording of a Mahapanchayat event attended by applicant-accused. In response to this the Learned Counsel for applicant-accused asked the Court to sought answer from the police present there on duty, if any permission was given for the organization of the Mahapanchayat. He further himself submitted that no permission was given.

He argued that, “it was not his client/ accused who organised this event rather it was organised by some other persons and that even before his client/accused spoke, there were several other orators who used very offensive languages and hate speech but only his client/applicant has been made accused and was got arrested as he is outsider and has no political connection in the state.”

He further argued that, there were other orators who were powerful people, who gave inflammatory speeches but no action had been taken against them. Thus, it showed bias attitude of Haryana Police against applicant.

“As per the authority of Hon'ble Supreme court in the case of Arnesh Kumar vs State of Bihar & Anr, Criminal appeal no1277 of 2014, the police has got no right to arrest the accused and was bound to release him on bail as the offences mentioned in the FIR are punishable for less than 7 years of imprisonment,” argued the counsel.

Another Ld. Counsel submitted his arguments for the accused and said that as per the settled laws decided by the Hon’ble Supreme Court regarding bail matters, accused has to be treated innocent till he is convicted. He argued that personal liberty of the accused has to be given importance as enshrined in Article 21 of the Constitution Of India.

He further submitted,

• offences under section 153A and 295 A of IPC are punishable with imprisonment of 3 years maximum and as per the authority of Arnesh Kumar (supra) he should be granted bail
• the accused is permanent resident of Jewar, district Gautam Buddh Nagar, U.P and his parents have land and property there and therefore he has no chance to flee from the trial.
• video recording may be creation of editing and fake and it’s a matter of trial

On the other hand, learned APP for the State assisted by I.O, submitted that

‘The accused has been booked under serious offences u/s 153-A,295-A IPC. He voluntarily participated in that event and gave hate speeches targeting a particular religious community and used inflammatory language to instigate the mob to abduct girls of particular religious community and to kill persons of that community.”

He further argued that the video clip shown in the court (as mentioned in the FIR) is original and accused can be seen clearly instigating the mob in the name of religion to do illegal acts.

“He also raised slogans against the particular religious Community. He also tried to disturb the harmony of the different communities, living peacefully. His object was very clear to spread hatred between two religious communities. He wanted to insult the religion of one particular class. He tried to promote enmity between the two groups on the ground of religion and doing acts prejudicial to maintenance of harmony between different religious groups,” asserted the APP

It was submitted by APP that, applicant could be seen in the videography, inciting the crowd and the feelings of religious discrimination in the crowd.

It was also contended by the APP for the state that, “the antecedent of the accused show that he is a habitual offender as there has been one FIR no 25 under sections 307, 336 IPC and 25,27 Arms Act dated 30/01/2020, P.S. New Friends Colony Delhi. He stated that seeing his antecedents coupled with present heinous crime, this application be dismissed.”

Taking into account the factual matrix of the present case the Judge made the following observations –

1. Liberty of a citizen is undoubtedly important but this is to be balanced with the security of the community as held by the Hon’ble Apex Court in the case titled as Lt. Col. Prasad Shrikant Purohit v. State of Maharashtra,2017 regarding the principles of Bail of accused that Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational rights of the agency. The law in regard to grant or refusal of bail is very well settled
2. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima-facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.
3. It is also necessary for the court granting bail to consider, among other circumstances, the following factors also before granting bail; they are:

• The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
•  Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
• Prima-facie satisfaction of the court in support of the charge.

In the present the Judge observed that,

“Needless to say that Freedom of speech has to be an integral part of any democratic country as in ours. However, this freedom has its own limitations and reasonable restrictions. None can be allowed to ignite fire to religious riots only because he has freedom of speech and he can blow hatred towards a particular group or religious community.”

He further stated that,

“Accused Gopal Sharma while addressing the mob can be seen instigating the mob for doing unlawful acts. He can be seen instigating abduction of girls of a particular community and their forceful conversion. He seems to be very proud of his antecedents. He even instigated to kill persons of a particular community and chanted slogans in this regard. Slogans and languages used by him, are clearly offensive and aimed to outrage the religious feelings of one particular group and promoting enmity between different groups/ religious community.”

“From the whole incident, it is clear that he was just promoting enmity, disharmony, hatred and ill-will between different groups on the ground of religion. His acts are pre-judicial to the maintenance of harmony between different religious communities and to disturb the public tranquility. Such activities cannot be tolerated in any civilized society. Hate speech based on religion or caste has become fashion nowadays. The police also seems to be helpless of dealing with such incidents. These kinds of activities are actually disturbing the secular fabric of our Country and killing the spirit of the Constitution of India,” noted the Judge.

The Court relied on Hon'ble Supreme Court of India in Pravasi Bhalai Sangathan v. Union of India (SC) :2014 (11) SCC 477 where it has held that, “Hate speech” is an effort to marginalise individuals based on their membership in a group. Therefore, stated that using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society.

Court noted that, Hate speech, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group's ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.

“Enlarging the accused on bail despite his heinous crime which amounts to divide of the peaceful society on the basis of religion or caste would give wrong message to the divisive forces. However, restraining the accused behind the bars will send strong message against the divisive forces by saying that India is an inclusive society where people of all faiths flourish with mutual respect and the Courts of Law will ensure that the Rule of law reigns supreme,” asserted Court.

Court rejected the Bail application and stated that, “rights of the accused of his personal liberty cannot be preferred against the right of the society in peaceful communal harmony and balance lies in favour of the later.”

[Case title - State Vs. Rambhagat Gopal Sharma]