- 1 - NC: 2025:KHC-D:3996 CRL.P No. 103864 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAVI V.HOSMANI CRIMINAL PETITION NO.103864 OF 2024 [438(Cr.PC)/482(BNSS)] BETWEEN: KRISHNA S/O. NAGAPPA NAIK, AGE: 57 YEARS, OCC. BUSINESS, R/O. ASARKERI, TQ. BHATKAL, DIST. UTTARA KANNADA. … PETITIONER (BY SRI VENKATESH M. KHARVI, ADVOCATE) AND: THE STATE OF KARNATAKA BY THE POLICE SUB INSPECTOR, BHATKAL TOWN POLICE STATION, REPRESENTED BY SPL. PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD-580008. … RESPONDENT (BY SMT.GIRIJA S.HIREMATH, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF BNSS, SEEKING TO ENLARGE THE PETITIONER/ACCUSED NO.1 TO ANTICIPATORY BAIL IN BHATKAL TOWN P.S.CRIME NO.127/2024 DATED 08.11.2024 FOR THE OFFENCE PUNISHABLE UNDER SECTION 353 (2) BNS ON THE FILE OF PRL. CIVIL JUDGE (JR.DN.) AND JMFC COURT, BHATKAL. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: V N BADIGER Digitally signed by V N BADIGER Date: 2025.03.01 10:28:20 +0530 - 2 - NC: 2025:KHC-D:3996 CRL.P No. 103864 of 2024 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI) This petition is filed under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’ for short), for grant of anticipatory bail in Crime no.127/2024 of Bhatkal Town Police Station for offence punishable under Section 353 (2) of Bharatiya Nyaya Sanhita, 2023 (‘BNS’ for short) by sole accused (petitioner). 2. Sri Venkatesh M. Kharvi, learned counsel for petitioner submitted petitioner was 57 years old businessman and permanent resident of Asarkeri. He had not committed any offences, but apprehending arrest in Crime no.127/2024 registered on 08.11.2024 by Bhatkal Town Police Station for offence punishable under Section 353 (2) of BNS arraigning petitioner as sole accused in order to destroy his reputation. 3. It was submitted, even in complaint filed by Mohiddin Ruknuddin (complainant), he stated that on 04.11.2024 at 12:00 p.m. petitioner had addressed public in premises of Assistant Commissioner’s office at Bhatkal, stating that properties claimed by muslims as Wakf did not belong to - 3 - NC: 2025:KHC-D:3996 CRL.P No. 103864 of 2024 them, and that they were only tenants as in year 1947, their fore-fathers were given properties and sent to Pakistan. He also stated that for Hindus - Hindustan and for Muslims - Pakistan were created. He declared that if muslims wanted property, they were to go to Pakistan and get their properties there. He was also alleged to have stated, in case they demanded property, they would be driven away to Pakistan and for which, there would be no requirement of Police or Army. It was alleged in garb of protesting against land jihad, petitioner was attempting to promote hatred on grounds of religion. 4. It was further stated that on 04.11.2024, an event was organized by Bhatkal BJP, in premises of Assistant Commissioner, Bhatkal, wherein Sunil Nayak former MLA and other members of BJP party were present and petitioner had joined them and stated falsehood against Muslims and Wakf properties and in garb of protest event, he had made false statements against Wakf properties and also threatened that muslims would be sent to Pakistan, which was in violation of their religious rights. Based on said complaint, Crime no.127/2024 was registered for above said offence. - 4 - NC: 2025:KHC-D:3996 CRL.P No. 103864 of 2024 5. At outset, it was submitted, alleged incident occurred on 04.11.2024, whereas complaint was filed on 08.11.2024 i.e. after delay of four days, which would be fatal. It was submitted, to constitute offence under Section 353 (2) of BNS, main ingredient would be intention to create or promote hatred on ground of religion, between two religious groups. But, complaint lacked specific assertion about intention. It was submitted, petitioner was sole bread earner of family. 6. Insofar as criminal antecedents of petitioner, it was submitted petitioner was acquitted in all others except in Crime no.230/2017 for offence punishable under Sections 143, 147, 353, 341, 504 read with 149 of Indian Penal Code, 1860 (‘IPC’ for short). It was submitted, since same was still pending, it could not be referred to as antecedent. On above grounds, sought for allowing petition. 7. On other hand, Smt.Girija S. Hiremath, learned HCGP for respondent – State submitted, complaint contained specific overt acts against petitioner. Further, offence alleged against petitioner was of promoting hatred between two groups on ground of religion which under Section 353 (2) of BNS would - 5 - NC: 2025:KHC-D:3996 CRL.P No. 103864 of 2024 attract punishment of imprisonment upto 3 years. It was submitted, since petitioner had involved himself in similar offences earlier, in case of grant of bail, he was likely to commit similar offences again. It was lastly submitted, since investigation was in progress, there was also likelihood of tampering of prosecution witnesses and material. On above grounds, sought rejection. 8. Heard learned counsel. 9. From above, point that arises for consideration is: “Whether petitioner is entitled for anticipatory bail on conditions?” 10. From above, in this petition for anticipatory bail, petitioner is basing his apprehension of imminent arrest on registration of Crime no.127/2024 by Bhatkal Town Police Station arraigning petitioner as sole accused, for offence punishable under Section 353 (2) of BNS, which is non-bailable, which would be in satisfaction of requirement of law. 11. While petition is opposed by prosecution on ground that in guise of addressing protest gathering, petitioner had delivered hate speech strumming hatred between two groups - 6 - NC: 2025:KHC-D:3996 CRL.P No. 103864 of 2024 on ground of religion which would constitute offence under Section 353 (2) of BNS. It is also contended that petitioner having committed offences earlier disentitled himself for bail. 12. But one of petitioner’s main contention here is that complaint lacks specific averment about intention which would be required to establish offence under Section 353(2) of BNS. While dealing with constitutional validity of predecessor provision namely Section 505 of IPC, three main ingredients were identified by Constitution Bench of Hon'ble Supreme Court in case of Kedar Nath Singh v. State of Bihar, reported in 1962 SCC OnLine SC 6 as follows: “29. It is only necessary to add a few observations with respect to the constitutionality of Section 505 of the Indian Penal Code. With reference to each of the three clauses of the section, it will be found that the gravamen of the offence is making, publishing or circulating any statement, rumour or report (a) with intent to cause or which is likely to cause any member of the Army, Navy or Air Force to mutiny or otherwise disregard or fail in his duty as such; or (b) to cause fear or alarm to the public or a section of the public which may induce the commission of an offence against the State or against public tranquillity; or (c) to incite or which is likely to incite one class or community of persons to commit an offence against any other class or community. It is manifest that each one of the constituent elements of the offence under - 7 - NC: 2025:KHC-D:3996 CRL.P No. 103864 of 2024 Section 505 has reference to, and a direct effect on, the security of the State or public order. Hence, these provisions would not exceed the bounds of reasonable restrictions on the right of freedom of speech and expression. It is clear, therefore, that clause (2) of Article 19 clearly saves the section from the vice of unconstitutionality.” (emphasis supplied) 13. Prima facie perusal of complaint averments do not reveal compliance with said requirement. However, it would be too early and in fact inappropriate to give any conclusive findings at this stage based on prima facie view of prosecution material. 14. Insofar as criminal antecedents, petitioner filed a memo specifically stating that he was acquitted in all proceedings except one which was still pending. Until now, petitioner has not been convicted for any offence. Having due deference to principle of law that unless proved to be guilty beyond reasonable doubt, every offence in which petitioner may have been charged, cannot be considered as criminal antecedent. 15. It is also noted that prosecution has not denied or disputed petitioner’s assertion that he was having movable and - 8 - NC: 2025:KHC-D:3996 CRL.P No. 103864 of 2024 immovable properties in Asarkeri viilage, Bhatkal Taluk. It is also seen, offence alleged is neither punishable with death or imprisonment for life. Therefore, point for consideration is answered in affirmative, but subject to conditions and by clarifying that any observations made herein are prima facie and for purposes of this order and would not bind trial Court, while passing final judgment. Hence, following: ORDER Petition is allowed. Petitioner/accused shall be enlarged on bail, in case of his arrest in Crime no.127/2024 of Bhatkal Town Police Station for offence punishable under Section 353 (2) of BNS subject to following conditions: a) Petitioner shall appear before Investigating Officer within 15 days from date of this order and execute personal bonds for sum of Rs.1,00,000/- with two sureties for likesum. b) He shall appear before Investigating Officer for purpose of investigation as and when required and co-operate with investigation. c) Until filing of charge-sheet, he shall appear before Investigating Officer between 10:00 a.m. till 6:00 p.m. on every alternative Friday, starting from 07.03.2025. - 9 - NC: 2025:KHC-D:3996 CRL.P No. 103864 of 2024 d) He shall not threaten, tamper with or influence prosecution witnesses, either directly or indirectly. e) He shall not indulge in any criminal activities. SD/- (RAVI V.HOSMANI) JUDGE GRD CT:PA List No.: 1 Sl No.: 9