Jonathan Nitin Brady vs State Of West Bengal

Jonathan Nitin Brady ..... Appellant

Versus

State of West Bengal ..... Respondent

ORDER

Lokeshwar Singh Panta, J.

1. Leave granted.

2. Challenge in this appeal by special leave is to the order

dated 29.10.2007 passed by the High Court of Calcutta

in C.R.M. Petition No.11072/2007. By the impugned

order, the High Court has rejected the application of the 2

appellant for the grant of pre-arrest bail filed under

Section 438 of the Code of Criminal Procedure.

3. Briefly stated, the facts of the case are that the appellant

works as a Radio Jockey at New Delhi with the Radio

Channel `Red FM 93.5', a channel owned by Digital Radio

(Delhi) Broadcasting Limited. During the course of

regular morning show called "Morning No.1" [hereinafter

referred to as `the Show'], that was broadcasted only in

New Delhi from 7-11 a.m., on 24.09.2007, the appellant

discussed one Mr. Prashant Tamang's victory in the Tele-

Series called "Indian Idol" telecasted on Sony

Entertainment Television channel.

4. On 25.09.1997, it came to the appellant's knowledge

through media reports that sentiments of a certain

section of the public in West Bengal were purportedly

hurt given to misinterpretation of the above-said

discussion on the said show.

5. On 27.09.1997, certain fans of Mr. Prashant Tamang,

including one Mr. Dinesh Gurung, filed a written

complaint which culminated in registration of FIR 3

No.125/2007 under Section 153A of the Indian Penal

Code [for short `IPC'] against the appellant in Sadar

Police Station, Darjeeling. The remarks attributed to the

appellant in the FIR read as follows:-

"If Chowkidars are the Indian Idols (meaning Prashant Tamang), then wherefrom we are to obtain Chowkidars."

6. It was alleged in the FIR that the comments made by the

appellant during the course of the broadcast on

24.09.2007 promoted ill-feelings amongst different races

and communities in India and that the activities of the

appellant were prejudicial to the communal harmony. On

the basis of the misinterpretation of appellant's remarks

as reported in certain sections of the media, the

complainants also alleged that the appellant had

deliberately insulted the "Gorkhali/Nepali" community

and hence he was liable to be prosecuted for an offence

under Section 153A of IPC. In furtherance of FIR

No.125/2007, the Inspector-in-Charge, Sadar P.S.

Darjeeling (W.B.) wrote a letter dated 01.10.2007 to 4

learned Chief Judicial Magistrate, Darjeeling, praying for

issuance of Warrant of Arrest against the appellant. On

06.10.2007, the learned Chief Judicial Magistrate,

Darjeeling, issued warrant of arrest of the appellant.

7. The appellant apprehending his arrest in connection

with the aforesaid case approached the High Court for

grant of anticipatory bail on the ground that he has never

made the statements being attributed to him by the

various media reports and produced copy of the

transcripts of the Show. He stated that the requisite

mens rea for constituting an offence under Section 153A

of IPC was missing as the entire Show was based on

humour and satire. The appellant contended that he

had not made any implicit or explicit statements

portraying any community in bad light or disrespect.

However, on 26.09.2007 during the course of the Show

`Morning No.1', the appellant tendered an apology for any

unintentional hurt caused to the sentiment of any

community owing to any misinterpretation or wrongly

portrayal of his remarks. It was stated that during the 5

said broadcast, Mr. Prashant Tamang appeared on the

Show vide a telephonic interview and himself clarified the

misunderstanding and stated that in his opinion the

appellant had not made any derogatory remarks.

8. The Radio Channel of which the appellant is an employee

issued a Press Release on 27.09.2007 congratulating Mr.

Tamang on his achievement and also quoting his specific

remarks regarding the entire sequence of events being

just misunderstanding. The said Channel further

published an advertisement saluting Mr. Tamang's

victory on 28.09.2007 and reaffirming its commitment to

the cause of promoting musical talent in North-East

India. Vide a Press Release dated 29.10.2007, the

Channel further tendered a formal public apology for any

inadvertent hurt that might have been caused to any

community or public in general.

9. It was in these circumstances that the appellant

apprehending his arrest approached the High Court for

grant of anticipatory bail. The High Court while rejecting

the application of the appellant made the following order: 6

"We have carefully heard the submissions made at the Bar. We have also perused the materials in the Case Diary with utmost circumspection. We find from the materials collected by the Investigating Agency that the elements of Section 153A of the Indian Penal Code have satisfactorily been made out.

We further feel that tendering of the apology, as submitted by the learned Senior Counsel for the petitioner, in our view, cannot modify the gravity of the situation nor whittle down the impact of the remarks made by the petitioner. The exact words spoken by the petitioner squarely attract the provision of Section 153A of the Indian Penal Code and we are also of the firm view that the same was uttered with necessary mens rea in mind.

We cannot be oblivious of the situation that has been pointed out on behalf of the State which has arisen as a fall out of such remark made by the petitioner having widespread repercussion on the local area, from where Shri Prashant Tamang hails.

Keeping in mind the aforesaid situation, we are of the considered view that this is not a fit case for entertaining the application under Section 438 of the Code of Criminal Procedure.

Accordingly, we reject the same."

7 10. Now, the appellant has approached this Court by way of

special leave petition challenging the correctness and

validity of the order of the High Court.

11. We have heard Mr. U. U. Lalit, learned senior counsel for

the appellant and Mr. Tara Chand Sharma, Advocate, for

the respondent-State.

12. On prima facie scrutiny of the material on record, we are

of the view that in the backdrop of the facts and

circumstances narrated hereinabove it is a fit case where

the appellant is entitled for the grant of anticipatory bail.

We do not see any satisfactory and convincing reason for

custodial interrogation of the appellant for the alleged

offence registered against him. The appellant can be

interrogated by the Investigating Officer without taking

him in custody. We, however, do not propose to embark

upon the merits of the case at this stage.

13. We, accordingly, allow the appeal and order that in the

event of the arrest of the appellant for the alleged offence,

he shall be released on bail subject to the following

conditions:-

8

(i) The appellant shall furnish personal bond

in the sum of Rs.10,000/- with one solvent

surety of the like amount to the satisfaction

of the Chief Judicial Magistrate, Darjeeling,

or the Investigating Officer.

(ii) The appellant shall make himself available

for interrogation as and when he is so

directed by the Investigating Officer by

sending written Hukumnama to him.

(iii) The appellant shall not directly or

indirectly make any inducement, promise or

threat to any witness acquainted with the

facts of the case so as to dissuade him from

disclosing such facts to the Court.

14. We have noticed that the High Court has made certain

observations in its above-extracted order, which, in our

opinion, are uncalled for and unwarranted at this stage

of the case. The High Court ought not to have made the

said observations at the preliminary stage of the 9

investigation of the case, which may have caused

prejudice to the defence of the appellant during the trial

of the case. We, therefore, make it clear that the said

observations shall not be taken into consideration by the

trial court at any stage of the proceedings of the case.

15. In the result, this appeal is allowed in the above-said

terms and conditions.

........................................J. (R. V. Raveendran)

........................................J. (Lokeshwar Singh Panta) New Delhi, September 10, 2008.