Srinagar: The J&K High Court Thursday granted bail to Zakir Hussain, a political activist from Kargil (Ladakh), arrested in June for allegedly using deprecating language against PM Modi and Indian Army over the standoff with China in eastern Ladakh which has left 20 soldiers dead.
Citing a Supreme Court judgment, Justice Sanjay Dhar who heard Hussain’s petition said “mere expression of derogatory or objectionable words may not be a sufficient ground for invoking the provisions contained in Section 124A or 153A” — sections of the British Indian era Penal Code dealing with sedition and societal enmity.
Justice Dhar held that the provisions would apply only when the written or spoken words have the tendency or intention of creating disorder or disturbance of public peace by resort to violence.
“It will be premature for this court to comment on the question whether the alleged conversation made by the petitioner and uploaded on the social media has the tendency of creating disorder or disturbance of public peace by resort to violence,” he said.
Hussain, a councilor of Ladakh Autonomous Hill Development Council (LAHDC)-Kargil was arrested on June 19 after his “objectionable” audio clip mocking PM Modi and the Army in the wake of the clashes between India and China went viral on social media.
According to lawyer M A. Rathore, Hussain has been “falsely” implicated by police as he had political enmity with some people which has led to filing of a case against him.
The petitioner had approached Principal Sessions Judge, Kargil for bail application which was dismissed.
The counsel for police stated that Hussain has made “highly objectionable and derogatory” comments against the India and its armed forces.
The contents of the transcript of conversation between Hussain and his co-accused Nissar Ahmad Khan prima facie appeared to the court that duo used certain expressions and sentences in the conversation as were awfully intolerable.
Rathore, however, contended “even if it is assumed that the petitioner had made the conversation and uploaded the same on the social media, still then the offence under Section 124A and 153A of IPC is not made out against the petitioner”.
According to him, in order to make out a case under Section 124A of IPC, “it is necessary that the offensive remarks or speech should lead to some sort of violence or agitation from the public, which is not the case here”.
The counsel shore up his argument on the judgment of the Supreme Court in Balwant Singh and Anr. vs State of Punjab which said that whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the established law shall be punished.
The court admitted the prosecution has not been able to establish any mens rea (guilty mind) on the part of the appellants.
“The petitioner is an elected representative of LAHDC having deep roots in the community, as such, the chances of his fleeing from justice are very remote,” it said.
It accepted the bail petition subject to furnishing of personal bond with one surety in the sum of Rs 50,000 and certain other settings.
