Recently, the Delhi High Court granted the applicant limited transit bail for two weeks to pursue bail in Nagaland, where the FIR was filed. The case involved allegations that a social media post incited communal hatred against Scheduled Castes and Scheduled Tribes. The applicant contested the legality of his arrest in New Delhi, citing procedural violations and insufficient grounds for the SC/ST Act.
The Court emphasized that bail requires the applicant to be in judicial custody and highlighted the significance of territorial jurisdiction. It affirmed the concept of “transit anticipatory bail” for individual liberty. Upon reviewing the SC/ST Act allegations, the Court found no evidence of caste-based targeting in the applicant’s social media post.
Brief Facts:
The allegation in the FIR centres on a social media post purportedly made by the applicant, allegedly inciting communal hatred and disharmony among different groups based on religion, caste, or race, with specific targeting of Scheduled Castes and Scheduled Tribes members. Following this, the Nagaland Police arrested the applicant from this residence in New Delhi on 18.11.2023. The applicant was presented before the Special Judge, Sc/ST Act, South, Saket Courts, New Delhi, for transit remand, however, the court denied transit remand and granted interim bail for 10 days. The applicant contends the arrest was unlawful, citing non-compliance with procedural requirements under Section 41A of the CrPC, as no prior notice was served. The bail application pertains to FIR registered at Police Station Dimapur, invoking Sections 153A, 153B and 505(1) & (2) of the IPC and Section 3(1), (r), (s) and (u) of the SC/ST Act.
Contention of the Petitioner:
The counsel for the petitioner argued that the arrest was illegal, as the Nagaland Police did not serve a notice under Section 41A CrPC, a requirement for offences punishable by less than seven years. This omission, according to the counsel, contravened procedural safeguards established in Arnesh Kumar v. State of Bihar. The petitioner, who has cooperated fully with authorities by surrendering his devices, poses no risk of tampering with evidence or influencing witnesses. The counsel further challenged the jurisdiction of the arrest in Nagaland, asserting that the social media post originated in Delhi and citing Navinchadra N. Majithia v. State of Maharashtra to argue that the Delhi High Court is competent to quash the FIR. Additionally, it was argued that invoking the SC/ST Act was misplaced, as the post did not specifically target any member of the Sc/ST community. The Counsel referenced Hitesh Verma v. State of Uttrakhand to emphasize that no caste-based insult or intent to degrade was evident in the petitioner’s statements.
The Counsel also argued that the alleged offence under Section 153A IPC lacked the requisite mens rea, as the post contained no intent to incite communal disorder and was removed shortly after being posted. Lastly, the counsel contended that the petitioner exercised his fundamental right to freedom of speech under Article 19(1)(a) of the Constitution, aiming to raise awareness on animal cruelty issues, which does not threaten national integrity or fall within the restrictions of Article 19(2).
Contention of the Respondent:
The Counsel for the respondent opposed the bail, arguing that the allegations against the applicant are serious, involving provisions of the SC/ST Act, which mandates stringent punishment. The counsel for the State of Nagaland asserted that the video posted by the petitioner directly targets people from Nagaland, inciting enmity between communities through offensive remarks on the Naga community’s cultural practices.
The respondent’s counsel argued that the applicant should seek relief from the court with jurisdiction over Police Station Dimapur West, citing Priya Indoria v. State of Karnataka and Ors. In addition, it was pointed out that the applicant is currently benefiting from interim relief and is not in custody, making the plea for regular bail unsustainable. Furthermore, the counsel highlighted Ramawatar v. State of Madhya Pradesh, wherein the Supreme Court emphasized that courts should exercise caution when considering cases under the SC/ST Act, as the Act was enacted to prevent acts of indignity and harassment toward Scheduled Castes and Tribes. The counsel noted that the offence has broad societal implications, extending beyond individual grievances raised by the complainant.
Observation of the Court:
The Court observed that the bail application was filed on November 2023 and noted the State’s contentions that “for the bail to be entertained, the applicant must be in judicial custody”. The Court highlighted that the applicant had been granted interim transit bail by the Trial Court on 18.11.2023, which was subsequently extended. It underscored the significance of territorial jurisdiction, stating that, in the context of interstate arrests, it may exercise its extraordinary jurisdiction. The Court pointed out that while it can provide temporary relief to safeguard individual liberty, the power to grant bail is generally confined to the court’s territorial jurisdiction.
Further, the Court referenced the principle of access to justice, citing the Supreme Court’s ruling in Shushila Aggarwal v. NCT of Delhi, which endorses the concept of “transit anticipatory bail”. The court emphasized that this legal framework is crucial in allowing individuals to seek recourse in the appropriate court, especially when their movement may lead to an arrest.
Upon evaluating the allegations under the SC/ST Act, the Court noted that “the allegations may not stand” upon review of the evidence. It stated that the petitioner’s social media post, although offensive, did not specifically target individuals based on their caste or tribal identity. The prosecution failed to demonstrate that the accused’s actions were motivated by the complainant’s caste, which is essential for the application of the SC/ST Act.
The Court highlighted that FIR was based on an Instagram video posted publicly and determined that the video did not prima facie indicate caste-based remarks directed at the complainant. Even if the content could have adversely affected the community in Nagaland, the Court found that there were no explicit violations of the SC/ST Act.
The decision of the Court:
The Court granted the applicant limited transit bail for two weeks to seek bail in Nagalanfd, where the FIR was lodged. The Court directed that the applicant must cooperate with the investigation, not leave the country without permission, avoid contracting witnesses, provide a mobile number to the investigating officer, and inform of any change in residence. The applicant is to surrender in Nagaland within this period for further legal resources. A copy of the order will be sent to the Resident Commissioner of Nagaland for compliance.
Case Title: Akash Tanwar v. State of Delhi & Anr.
Coram: Justice Amit Mahajan
Citation: BAIL APPLN. 3985/2023 and W.P.(CRL) 1350/2024
Advocate for Petitioner: Adv. Sumit Mishra, Ankit Siwach, Kapil Tanwar & Pawan Gupta
Advocate for Respondent: Adv. Amol Sinha ASC (Crl.), Kshitiz Garg, Rupali Bandhopadhya ASC (Crl.), Abhijeet Kumar, K. Enatoli Sema, Amit Kumar Singh, Prang Newmai, Chubalemla Chang, SI Sachin Panwar (P .S. Fatehpur Beri)
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