The J&K High Court, on Thursday, conceded bail to Zakir Hussain, a political activist from Kargil (Ladakh), arrested in June for supposedly utilizing derogatory language against PM Modi and the Indian Army over the deadlock with China in eastern Ladakh which has left 20 soldiers dead.
Referring to 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”.
Justice Dhar held that the provisions would apply just when the composed or verbally expressed words have the inclination or goal of causing dishevel or aggravation of public harmony by resort to disorder.
“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 “questionable” clip insulting PM Modi and the Army in the wake of the conflicts among India and China became a viral clip.
As per lawyer M A. Rathore, Hussain has been “maliciously” suspected by police as he had political hatred with certain individuals which has prompted filing of a case against him.
The petitioner had moved his bail plea to Principal Sessions Judge, Kargil which was excused. The counsel for police said that Hussain has made “highly offensive and derogatory” remarks against India and its armed forces.
Rathore, nonetheless, fought “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”.
As per him, so as to put forth out a defense 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 gave the reference of a Supreme Court judgement, Balwant Singh and Anr. V. State of Punjab which said that whoever by words, either spoken or composed, or by signs, or in any case brings or intends to bring into contempt or hatred, or excites or tries to excite offense towards the established law will be penalized.
The court conceded the prosecution has not had the option to set up any mens rea with respect to 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 was acknowledged that the bail petition subject to furnishing of personal bond with one guarantee in the amount of Rs 50,000 and some other settings.