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Synopsis

The Kerala High Court quashed criminal proceedings against an Australian tourist of Jewish descent, Zara Michele Shilansky, who had been booked by the Fort Kochi police for tearing down posters related to the Israel-Palestine conflict. The complaint was filed by the student wing of Jamaat-e-Islami, accusing the tourist of committing an offence under Section 153 of the Indian Penal Code (IPC), which punishes actions leading to provocation of riots.

The court, presided over by Justice Bechu Kurian Thomas, observed that the posters were put up without legal authorization, and therefore, the act of removing them could not be deemed illegal. The court noted : “the posters were concededly put up without any legal authority and also since it did not contain the name of any organisation that had put it up, the act of removing the posters or tearing down the posters cannot be said to be an illegal act or as one capable of provoking the commission of riot. Hence, the prosecution of the petitioner for an offence under section 153 IPC is an abuse of the process of law and the proceedings are liable to be quashed.”

The case arose from an incident in which Shilansky and her friend noticed two posters at Fort Kochi bearing the slogan "Silence is Violence, Stand up for Humanity." Disturbed by the political message, they first approached the local tourism office to have the posters removed. When that effort failed, the pair removed the posters themselves. This led to the complaint by Muhammed Azeem K.S., the Area Secretary of the Students Islamic Organization (SIO), alleging that the tourist had destroyed posters unlawfully placed near the boat jetty. Subsequently, the Fort Kochi Police registered a First Information Report (FIR) under Section 153 of IPC. Despite being granted bail, Shilansky faced further complications when a lookout notice was issued, preventing her from leaving the country and resulting in her detention at the Kochi International Airport. She, thus, filed a petition to quash the proceedings before the High Court.

Advocate Blaze K. Jose, representing Shilansky, argued that the criminal proceedings were unwarranted. It was also pointed out that the posters were put up without legal permission, and thus, their removal could not be classified as an illegal or wanton act under Section 153 IPC. The petitioner further emphasised that the tourist acted out of concern and that her actions lacked the malign intent required to attract criminal liability under the cited provision.

Public Prosecutor Sreeja V, representing the State, opposed the petitioner’s plea, contending that the allegations should be examined in a trial, asserting that the petitioner's actions made out the offence under Section 153 IPC.

The court took into account the legal requirements of Section 153 IPC, which mandates that the accused must have committed an illegal act with the intent to provoke or cause rioting. The court noted that in this case, the essential elements of the offence were not met. “If a poster has been put up without authority, it is irrefutably an illegal act. Removal of an illegal poster cannot be said to be an illegal act done malignantly or wantonly, even if it is done by a private individual, though ideally, petitioner ought to have approached the law enforcement agencies, instead of tearing it by herself. Since tearing down a poster kept without any legal authority cannot strictly fall within the term illegal act, the main ingredient of Section 153 is lacking in the final report,” the court stated.

Furthermore, the court found that the final report did not contain any evidence suggesting that the petitioner intended to provoke or knew her actions would incite violence. The absence of any organization's name or identifying details on the posters further weakened the prosecution’s case. The court observed : “In the absence of the name of any organization or any group, the petitioner could not have even imagined that it would result in rioting or provoke the commission of any offence.”

Conclusively, the court quashed all proceedings against the petitioner.

 

Cause Title: Zara Michele Shilansky v State of Kerala [CRL.MC NO. 6800 OF 2024]