Mohd. Anees & Anr. vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 7349 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 9
 

 
Case :- MISC. BENCH No. - 13812 of 2021
 

 
Petitioner :- Mohd. Anees & Anr.
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home,Lko.& Ors.
 
Counsel for Petitioner :- Saud Rais,Praveen Tripathi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Narendra Kumar Johari,J.

(1) The Court has convened through Video Conferencing.

(2) Heard Shri Saud Rais and Shri Praveen Tripathi, learned Counsel for the petitioners, Ms. Nand Prabha Shukla, learned Additional Government Advocate for the respondents no. 1 to 4/State and perused the impugned F.I.R. and the material brought on record.

(3) The instant writ petition has been filed by the petitioners, Mohd. Anees and Mohd. Naeem, seeking to quash the First Information Report dated 24.06.2021 registered as F.I.R. No. 231 of 2021, under Sections 153/153A/505(1)(b)/120-B/34 of the Indian Penal Code, Police Station Ram Sanehighat, District Barabanki.

(4) Brief facts of the case are that the impugned F.I.R. has been lodged by Sri Mahendra Singh, Sub-Inspector, Police Station Ram Sanehi Ghat, District Barabanki (respondent no.5), stating therein that he has come to know from reliable sources that some rowdy elements Mohd. Anees (petitioner no.1 herein), resident unknown, Mohd. Naeem (petitioner no.2 herein), resident unknown and Seraj Ali, Journalist of 'The Wire' and some other unknown persons have made a video clip and uploaded it, which are going viral on social media.  In the said video clip, the said mischievous elements have intentionally, and in order to disband the public order, distorted the fact of demolition exercise, which was carried out as per the due process of law few months ago, in relation to illegal construction, which was made contrary to law in Tehsil Ramsanhehi Ghat Compound. In the said video, various false and baseless statements have been given, wherein in one of the statement, it has been stated that Administration/Police have thrown the religious books of particular religion in river and rivulet but the fact is that nothing has happened of this sort. On 23.06.2021, with mala fide intention and without verifying the truthness of the said incident, (1) Siraj Ali @ serajali, (2) Mukul S Chauhan @ mukulschauhan and (3) On-Line News Portal The Wire @ thewire_in, have spread rumours and presented the said incident in a communal way through their twitter handles. It is also alleged in the F.I.R. that for disturbing the public order as well as incite religious sentiments, the said statements and information have been circulated and published. The said statement, which was published in the twitter handles, was not only the opinion of a particular person but it was circulated for the specific intention and such circulated tweet is a criminal conspiracy, which has been circulated by the aforesaid persons and some unknown persons, in order to promote aversion and animosity in the Society. This misleading statement has been liked and re-tweeted by various persons in a short span of time.  With the F.I.R., the screenshot of the tweet and uploaded video have also been annexed.

(5) It appears that on the basis of the aforesaid allegations, the F.I.R. No. 231 of 2021 has been registered against four persons including the instant writ petitioners as well as On-Line News Portal ''The Wire' and some unknown persons under Sections 153/153A/505(1)(b)/120-B/34 of the Indian Pental Code, Police Station Ram Sanehighat, District Barabanki, hence the writ petitioners have filed the instant writ petition, challenging the aforesaid F.I.R.

(6) It has been argued by the learned Counsel for the petitioners that the petitioner no.1 is the Secretary of the Committee of Gareeb Nawaz Mosque, whereas the petitioner no.2 is the local resident of Barabanki, who used to go to mosque for offering prayer.  He argued that the allegations made in the impugned F.I.R. are false and concocted and are a result of afterthought and that too after much deliberations and consultation, to falsely implicate the petitioners in false criminal case to desist them from pursuing the illegal demolition which took place on the orders of the local administration in the night of 17.05.2021 of the Mosque, which was situated at Tehsil compound of Ramsanehighat, District Barabanki.  He argued that in the night of 17.05.2021, respondents no. 2-Superintendent of Police and respondent no.3-Station Officer, Police Station Ram Sanehighat, Barabanki had posted a video on twitter from their official account regarding the demolition of alleged encroachment. He argued that the allegations contained in the impugned F.I.R. are basically for intimidating and threatening the petitioners to discourage them from pursuing a case already filed  before this Court i.e. Writ Petition No. 11922 (M/B) of 2021 : Hasmat Ali and others Vs. Sub-Divisional Magistrate, Barabanki and others, wherein a detailed order has been passed on 22.06.2021 i.e. two days before lodging of the impugned F.I.R.

(7) Learned Counsel for the petitioners has argued that after illegal demolition, the District Administration started pressurizing the public not to make any complaint of their illegal and arbitrary exercise of power vested in them and, thereafter, several F.I.Rs. have been lodged making petitioner no.1 accused in one such F.I.R. registered as Case Crime No. 0189 of 2021, at Police Station Ramsanehi Ghat on 20.05.2021, which was challenged by the co-accused Mushtaq Ali and others by filing Writ Petition No. 11179 (M/B) of 2021, wherein a Co-ordinate Bench of this Court, vide order dated 28.05.2021, stayed the arrest of the writ petitioners in the aforesaid writ petition in Case Crime No. 0189 of 2021, a copy of which has been annexed as Annexure No.16 to the writ petition.

(8) Elaborating his submissions, learned Counsel for the petitioners has argued that seven F.I.Rs. have been lodged against the members of community and several accused persons were arrested.   His submission is that mere interview given to social media website or news agency, narrating the facts as it happened on 17.06.2021 at Ram Sanehighat, Tehsil compound, Barabanki, does not tantamount to committing offences as alleged in the impugned F.I.R. and further the action of the local district administration for demolishing the Mosque is under judicial review of this Court in Writ Petition No. 11922 (M/B) of 2021.

(9) Learned Counsel for the petitioners has further argued that right of freedom of speech and expressions as guaranteed under Article 19 (1) (a) of the Constitution of India is a fundamental right and by lodging the impugned F.I.R., respondents are trying to curb this right in gross violation/contravention of law laid down by the Apex Court in Romesh Thappar Vs. State of Madras :AIR 1950 SC 124; M.R. Parashar Vs. Farooq Abdullah : (1984) 2 SCC 343. In these backdrops, his submission is that the petitioner no.1-Mohd. Anees is the Secretary of the Committee of Gareeb Nawaz Mosque, whereas petitioner no.2-Mohd. Naeem is a local resident of Barabanki and they have been falsely implicated in the impugned F.I.R. He also argued that no offences under Sections 153/153A/505(1)(b)/120-B/34 I.P.C. are made out against the petitioners. Thus, he prays that the impugned F.I.R. is liable to be quashed.

(10) Vide order dated 06.07.2021, this Court granted time to the learned AGA to seek instructions as to whether the petitioners have been involved in other F.I.Rs., which have been registered against unknown persons, a copy of which has been annexed as Annexure No.17 to the writ petition, or not.

(11) Learned AGA, on the basis of instructions, has submitted that an F.I.R., bearing No. 0089 of 2021, under Sections 147, 148, 149, 323, 504, 506, 307, 332, 336, 353, 427, 34 and 188 I.P.C. and Section 7 Criminal Law (Amendment) Act, 1932, has been lodged against the petitioner No.1-Mohammad Anees and the same was challenged by him in Misc. Bench No. 11717 of 2021 : Mohd. Anees Vs State of U.P. and others. A Co-ordinate Bench of this Court dismissed the aforesaid writ petition No. 11717 of 2021 (M/B) vide order dated 10.06.2021, which reads as under :-

"Heard learned counsel for the petitioner and learned A.G.A. for the State.

By means of this petition, petitioner seeks issuance of a writ in the nature of certiorari quashing First Information Report bearing Case Crime No.0089 of 2021, under Sections 147, 148, 149, 323, 504, 506, 307, 332, 336, 353, 427, 34 & 188 I.P.C. and Section 7 Criminal Law (Amendment) Act, 1932, Police Station Ram Sanehi Ghat, District Barabanki.

From a bare perusal of the impugned F.I.R, it can not be said at this stage that no cognizable offence is made out against the petitioner. The name of the petitioner figures in the body of the FIR at Serial No.13, though for some reason it is not mentioned at Serial No.7 wherein 23 accused persons have been mentioned, this itself can not be a ground for entertaining this writ petition. Therefore, we are not inclined to entertain this petition. It is accordingly dismissed, however, without prejudice to the rights of the petitioner to avail other remedies under Sections 438/ 439 Cr.P.C. as the case may be, as per law."

(12) Learned AGA, while referring the aforesaid order dated 10.06.2021, has stated that the aforesaid order dated 10.06.2021 has not been brought on record by the petitioners, which shows that petitioners have not come to this Court with clean hands and the order dated 10.06.2021 passed in writ petition No. 11717 of 2021 (M/B) has not been filed or brought on record in the instant writ petition with oblique motive.  Moreso, petitioners are named in the F.I.R. and in the said F.I.R., serious allegations for spreading incorrect facts and uploading video clip on the social media through their twitter handles, have been levelled against the petitioners. She argued that on account of incorrect facts and video clip being uploaded on their twitter handles, there was a chance of violation of peace and tranquility in the Society. Therefore, impugned F.I.R. has been lodged against the petitioners, which reflects that cognizable offence is made out against the petitioners. She also argued that petitioners are notorious miscreants as previously, i.e., F.I.R. No. 0089 of 2021 has also been lodged.

(13) So far as the plea of the learned Counsel for the petitioners that a Co-ordinate Bench of this Court has granted interim protection to the petitioner no.1-Mohd. Anees in writ petition No. 11179 of 2021 (M/B) is concerned, it has been argued by the learned AGA that the order dated 28.05.2021 is an interim order, which has been passed in writ petition no. 11179 of 2021 (M/B), wherein the petitioner no.1 has challenged Case Crime No.0089 of 2021, whereas in the instant case F.I.R. No. 231 of 2021 has been challenged.  He argued that it is not the case of the petitioners that the allegations made in the impugned F.I.R. are identical to that of the F.I.R. No. 0089 of 2021, which has been challenged by the petitioner no.1 in writ petition No. 11179 of 2021 (M/B), hence the benefit of the interim order dated 28.05.2021 cannot be granted to the writ petitioners in the instant writ petition. Moreso, in the instant case, the  arguments of the learned counsel for the parties are being finally heard, therefore, interim order dated 28.05.2021 granted in Writ Petition No. 11179 of 2021 (M/B) is not binding on this Court.  Therefore, the instant writ petition is liable to be dismissed.

(14) We have minutely examined the submissions advanced by the learned Counsel for the parties and gone through the impugned F.I.R.

(15) Before proceeding further on merits of the case, we deem it appropriate to first adjudicate the submission of the learned counsel for the petitioners that the petitioners may be granted interim protection as has been granted by a Co-ordinate Bench of this Court while dealing with almost identical issue in Writ Petition No. 11179 (M/B) of 2021 vide order dated 28.05.2021, which reads as under :-

"Heard learned counsel for the petitioners and learned A.G.A. for the State through Video Conferencing.

By means of this petition, the petitioners have assailed the F.I.R. registered as case crime no. 189 of 2021, under Sections 419, 420, 467, 468, 471 I.P.C., police station Ram Sanehi, district Barabanki.

It is submitted that the F.I.R. lodged against the petitioners does not specifically mention of any public document, which has either been forged or manipulated by the petitioners in any manner. The very contents of the F.I.R. are thus false and unfounded. It is also submitted that the alleged mosque was a wakf by user and was registered as a waqf property. It is also submitted that the rights were protected under a judicial order passed by this Court.

Learned A.G.A. opposing the maintainability of the writ petition has not been able to clarify as to what documents specifically were forged by the petitioners, however it is submitted that the investigation is still pending. It is also submitted that for lack of instructions a clear position cannot be brought to the notice of this Court. Thus, time is prayed for filing a counter affidavit.

Time prayed for is granted.

Let a counter affidavit be filed within three weeks. Rejoinder affidavit, if any, may be filed within a week thereafter.

List after expiry of the aforesaid period.

In the meantime, it is provided that until a police report under Section 173(2) Cr.P.C. is filed, the petitioners shall not be subjected to any coercive measures. It is made clear that the petitioners shall co-operate with the investigation and shall not evade their presence as and when called for."

(16) It is settled law that the interim orders/directions are issued on the basis of prima facie finding and makes temporary arrangements to preserve status quo, to ensure that the matter does not either become infructuous or a fait accompli before final hearing and this view has again been reiterated by the Hon'ble Supreme Court in the case of State of Assam v. Barak Upatyaka D.U. Karmachari Sanstha : (2009) 5 SCC 694). The Hon'ble Supreme Court again held that interim directions based on tentative reasons, restricted to peculiar facts of the case involving extra- ordinary situation, have no value of precedent and the interim order which does not finally and conclusively decide an issue cannot be a precedent. Apart from above, it is also settled law that the interim order and direction issued in a case binds the parties to that case only and that too, till the final decision of the matter by final judgment.

(17) Here, at this admission stage, we are finally hearing the matter, therefore, interim order dated 28.05.2021 passed in writ petition No. 11179 of 2021 (M/B) by a Co-ordinate Bench of this Court is not binding on us. Therefore, the plea of the petitioners in this regard is not sustainable and is, accordingly, rejected. Now, we proceed to adjudicate the matter on merits.

(18) On a query being put to learned Counsel for the petitioners as to why he has not disclosed in the instant writ petition the order dated 10.06.2021 passed in Misc. Bench No. 11717 of 2021, which has been filed by the petitioner no.1-Mohammad Anees challenging the earlier F.I.R. lodged against him, bearing case crime No. 0089 of 2021, under Sections 147, 148, 149, 323, 504, 506, 307, 332, 336, 353, 427, 34 and 188 I.P.C. and Section 7 of the Criminal Law (Amendment) Act, 1932, Police Station Ram Sanehi Ghat, District Barabanki and a Co-ordinate Bench of this Court dismissed the aforesaid writ petition, learned Counsel for the petitioners could not give any satisfactory reply.

(19) It is pertinent to mention here that the legal position on the issue of quashing of FIR or criminal proceedings is well-settled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. The Courts should not ordinarily interfere with the investigations of cognizable offences. However, where the allegations made in the FIR or the complaint even if taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused, the FIR or the charge-sheet may be quashed in exercise of powers under Article 226 or inherent powers under Section 482 of the Cr.P.C.

(20) Recently, in Neeharika Infrastructure Private Limited vs. State of Maharashtra (Criminal Appeal No. 330 of 2021, decided on 13.04.2021), the Hon'ble Supreme Court considered the powers of the High Court while adjudicating a petition for quashing of the FIR under Article 226 of the Constitution of India and under Section 482 of the Criminal Procedure Code, 1973. In Neeharika Infrastructure Private Limited (supra), the appellants challenged an interim order issued by the Bombay High Court, in a quashing petition filed under Section 482 Cr.P.C. and Article 226 of the Constitution. The Bombay High Court issued an interim order directing that "no coercive measures shall be adopted against the petitioners in respect of the said FIR". While examining the correctness of the said interim order, Hon'ble the Supreme Court in para-23 has held as under :

"23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

(21) Keeping in mind the aforesaid dictum of the Hon'ble Supreme Court, we find that in the instant case, it transpires from the impugned F.I.R. that it has been lodged by respondent no.5-Sri Mahendra Singh, Sub-Inspector, Police Station Ram Sanehighat, District Barabanki to the effect that some miscreants including the petitioners have made a video clip and uploaded it on social media through their twitter handles, which became viral and such tweets were tweeted with criminal conspiracy to create communal disharmony. The investigation of the case is pending. Earlier  an F.I.R. was also lodged against the petitioner No.1, bearing F.I.R. No. 0089 of 2021, which was challenged by the petitioner No.1 by filing writ petition No. 11717 of 2021 (M/B) and a Co-ordinate Bench of this Court, vide order dated 10.06.2021, dismissed the writ petition but the petitioners have not brought on record the aforesaid fact in the instant writ petition in order to gain undue advantage and also suppressed the material fact and only annexed the interim order dated 28.05.2021 passed in Writ Petition No. 11179 of 2021 (M/B), which was in their favour.

(22) It is well settled that this Court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the Court about the existence of sufficient ingredients constituting the offence is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases.

(23) So far as the submission of the learned Counsel for the petitioners that the right of freedom of speech and expressions as guaranteed under Article 19 (1) (a) of the Constitution of India is a fundamental right and by lodging the impugned F.I.R. respondents are trying to curb this right in gross violation/contravention of law laid down by the Apex Court in Romesh Thappar Vs. State of Madras (Supra) and M.R. Parashar Vs. Farooq Abdullah (Supra), it is pertinent to mention here that the Apex Court in Amish Devgan vs. Union of India and others (Writ Petition (Criminal) No. 160 of 2020, decided on 07.12.2020) has adjudicated the controversy around the concept of hate speech. In the said case, it has been alleged that on 15 June 2020, while hosting a debate on his show ''Aar Par' (channel News18 India) regarding the Place of Worship Special Provision Act, the news anchor Amish Devgan called Khwaja Moinuddin Chisthi, better known as Khwaja Ghreeb Nawaz, an ''attacker' and ''lootera' and following this, several FIRs were registered against the anchor across the country. The Apex Court, vide judgment and order dated 07 December, 2020, refused to quash FIRs registered against Journalist Amish Devgan for his remarks against Sufi Saint Moinnuddin Chisthi, several FIRs invoked Sections 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs), 153A‬ (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony), 505 (Statements conducing to public mischief) and 34 (Acts done by several persons in furtherance of common intention) of the Indian Penal Code.‬ The Apex Court observed that the issue whether the offence was committed or not can be determined only on a factual evaluation in a trial. In the said case, the Apex Court has also discussed the distinctions between ''hate speech' and ''free speech', the need to criminalize ''hate speech' and the tests to identify it and observed as under :-

"In this context, it is necessary to draw a distinction between ''free speech' which includes the right to comment, favour or criticise government policies and ''hate speech' creating or spreading hatred against a targeted community or group. The former is primarily concerned with political, social and economic issues and policy matters, the latter would not primarily focus on the subject matter but on the substance of the message which is to cause humiliation and alienation of the targeted group"

(24) In the present case, the petitioner no.1 claims to be a Secretary of the Committee of Gareeb Nawaz Mosque, whereas the petitioner no.2 claims to be a local resident of Barabanki, who used to go to mosque for offering prayer.  The respondent no.5-Sri Mahendra Singh has lodged the impugned F.I.R. against the petitioners to the effect that some miscreants, including the petitioners, have made a video clip and uploaded it on social media i.e. through their twitter accounts, which had gone viral and in the said video clip, the miscreants have intentionally distorted the facts of demolition and they have also blamed upon the administration/police of throwing the religious books in the river and drain of a particular religion, which gave a communal colour and such tweet were tweeted with criminal conspiracy to create communal disharmony.

(25) The issue of demolition of the Mosque in question is a subject matter of writ petition No. 11922(M/B) of 2021, wherein a Co-ordinate Bench of this Court, vide order dated 22.06.2021, has made certain observations and made query to the State and the same is still pending. However, in the instant writ petition, the petitioners have challenged the impugned F.I.R. with a plea that the allegations made in the F.I.R. are false and concocted.

(26) It is not the case of the petitioners that the alleged statement and uploaded video clip in their twitter handles have not been made by the petitioners and the petitioners have also not stated that their twitter accounts have been hacked, which, prima facie, shows that the petitioners rather admitted the fact that they have uploaded the alleged video clip and contents in their twitter accounts.

(27) Now, the question whether the uploaded contents in the video clip and statements circulated through their twitter handles are correct or not and whether the demolition of alleged encroachment is as per law or not, is a question of fact, which can only be ascertained by thorough investigation. Moreso, from perusal of the F.I.R., it appears that the petitioners, prima facie, are guilty for making false statement and uploaded video clip on their twitter accounts, therefore, at this stage, when the investigation of the case is still pending, it cannot be said that the offences which have been made by means of the impugned F.I.R. are not made out as it is a matter of investigation, which is still pending. Moreso, the question whether the petitioners have only made video clip with respect to the averments made in the pending writ petition before this Court or whether the petitioners have made criminal conspiracy as alleged in the impugned F.I.R, is a question of fact, which cannot be adjudicated or decided in a writ jurisdiction by mere plea of the petitioners that the action of the State by lodging the impugned F.I.R. is in violation of Article 19 (1) (a) of the Constitution of India. The investigation of the case is still going on. Therefore, the judgment cited by the Counsel for the petitioners is distinguishable in the facts and circumstances of the case, hence the plea of the Counsel for the petitioners in this regard is not sustainable and the same is rejected.

(28) Having given our careful and in-depth consideration, we do not think it would be appropriate at this stage to quash the FIR as it stalls the investigation into all the relevant aspects. However, our observations on the factual matrix of the present case in this decision should not, in any manner, influence the investigation by the police who shall independently apply their mind and ascertain the true and correct facts, on all material and relevant aspects. Similarly, the competent authority would independently apply its mind in case the police authorities seek sanction, and to decide, whether or not to grant the same. Same would be the position in case charge-sheet is filed. The court would apply its mind whether or not to take cognizance and issue summons.

(29) In view of the aforesaid, we are of the considered view that the submissions advanced by the learned Counsel for the petitioners call for determination on questions of fact which may be adequately discerned either through proper investigation or which may be adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial Court in case a charge sheet is submitted in this case. Thus, considering the allegations made in the FIR and material brought on record, it cannot be said that no prima facie case whatsoever is made out against the petitioners, rather there appears to be sufficient ground for investigation in the matter.

(30) Accordingly, we do not find any justification to quash the impugned F.I.R.

(31) The instant petition lacks substance and is, accordingly, dismissed.

(32) However, needless to say that the petitioners are at liberty to take legal recourse as provided under Section 438 Cr.P.C., if so advised.

(33) The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.

(34) The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 9.7.2021

Ajit/-