Bombay High Court
Sunaina Holey vs The State Of Maharashtra And Anr on 5 May, 2021
Bench: S.S. Shinde, Makarand Subhash Karnik
wpst 4732.20.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION STAMP NO. 4732 OF 2020
(CRIMINAL WP-ASDB-LDVC-287 OF 2020)
Ms.Sunaina Holey
Age : 39 years,
R/o : Progressive Villa,
Sector No. 26,
MAFCO Road, Vashi
Navi Mumbai 400 703 ....Petitioner
Vs.
1. State of Maharashtra
Through the Public Prosecutor
High Court, Bombay
2. Senior Police Inspector,
Azad Maidan Police Station,
Mumbai
3. Mr.Shashikant Pawar
Age : 40 years, Occ: Sub-Inspector
R/a: Flat No. 206, Guru Prem CHS,
Plot No. 25, Sector 4, Kalamboli
Navi Mumbai 410 218 ..... Respondents
Dr.Abhinav Chandrachud a/w Mr.Chandansingh Shekhawat a/w
Mr.Yashowardhan Deshmukh a/w Ms.Sailee Dhayalkar i/b Farishta
Menon, for the Petitioner.
Mr.Manoj Mohite, Senior Advocate a/w Mr.Vivek Babar a/w
Mr.J.P.Yagnik, APP for State.
1/62
::: Uploaded on - 05/05/2021 ::: Downloaded on - 10/09/2021 06:52:06 :::
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CORAM : S. S. SHINDE &
M. S. KARNIK, JJ
RESERVED ON : 07th JANUARY, 2021
PRONOUNCED ON : 05th MAY, 2021
JUDGMENT :
. Rule. Rule is made returnable forthwith. Heard
fnally with consent.
2. Invoking the Jurisdiction of this Court under Article
226 of the Constitution of India read with section 482 of the Code
of Criminal Procedure, the Petitioner prays for quashing of FIR No.
97 OF 2020 dated 15/04/2020 registered with Azad Maidan Police
Station for the ofence punishable under Section 153A of the
Indian Penal Code, 1860 (for short 'IPC') .
3. The said FIR has been registered against the
Petitioner for a "tweet" (or referred to as a statement) which she
posted on the social media website known as 'Twitter' on
14/04/2020. The said tweet reads thus :
"Crowd shouting Yeh ALLAH KE TARAF SE NAHI HAI YE MODI KE
TARAF SE HAI- What's going to happen next @ ofceofut @
AUThackeray @priyankac19? PR karona ab. Blame it on
@narendramodiji.Hain? Bandra Masjid Location Hai. Ab aur kuch
bolu? Single Source Kaaf Hai. @ Dev_Fadnavis Help".
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4. It is the stand of the Respondent - State that by
reposting the video on Twitter with the above message on
14/04/2020, the Petitioner thereby sought to create hatred and
enmity between Hindus and Muslims. The transcript of the video
recording reposted by the Petitioner on Twitter is as follows:
"Person addressing the crowd (Person 1): Tum log jo ye dar
rahe hai thik hai, takleef hai, takleef ho Rahi hai, mein
samaj sakta hu, lekin..... ye Allah ke tarraf se hai, agar jo ye
bol de ke ye Allah ke taraf se nahi hai wo iman waala nahi
hai. Bolo Allah ke taraf se hai ke nahi?"
In the video, a member of the crowd is seen blaming the Prime
Minister of India for the outbreak of Covid-19 pandemic.
5. According to learned Counsel Shri Chandrachud
appearing on behalf of the Petitioner, if the contents of tweet, the
FIR, the materials accompanying the FIR and the material
collected during the investigation by the police from April 2020
are considered in its entirety, it would clearly reveal that
ingredients for constituting an ofence under Section 153A IPC
are not made out. Learned Advocate submitted that the
Petitioner is not the author or the creator of the said video and
that, no case has been registered against the person(s) who
created the said video. He further pointed out that no case has
been registered against the person blaming Prime Minister of
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India for the outbreak of Covid-19 pandemic in the video.
According to him, the Petitioner merely "reposted" the video on
her twitter feed which was already created by someone else.
6. Learned Counsel urged that while "Person 1" in the
video informs the crowd that Covid-19 pandemic is an act of God,
one member of the crowd can be heard shouting that Covid-19
pandemic is not an act of God but has been brought about by the
Prime Minister of India. The Petitioner was unhappy with this
viewpoint and reposted the video in order to criticize the
viewpoint of the person that Covid 19 pandemic was brought
about by Prime Minister of India.
7. Learned Counsel then invited our attention to Section
153A of the IPC. He submitted that the ingredients of Section
153 are not made out even upon considering all materials on
record. Learned Counsel relied upon various judgments of the
Hon'ble Supreme Court, this Court and also those of the United
States (for short US) Supreme Court in support of his submissions
that no case is made out against the Petitioner.
8. In support of his submissions, learned Counsel relied
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upon the decision of the Hon'ble Supreme Court in the case of
Manzar Sayeed Khan Vs. State of Maharashtra. According
to him there are four principles discernible from the said decision
which are thus :
a. Firstly, there is no need to wait for an investigation to be
completed before quashing an FIR under Section 482 of the Code
of Criminal Procedure,1973 (paragraphs 10, 20). In Manzar
Sayeed Khan's (supra) case, the High Court had taken the view
that the investigation must be completed before an FIR can be
quashed. However, the Supreme Court disagreed with this view
and quashed the FIR.
b. Secondly, the intention of the accused must be judged on the
basis of the words used by accused along with surrounding
circumstances (paragraph 16).
c. Thirdly, the statement in question, on the basis of which the
FIR has been registered against the accused, must be judged on
the basis of what reasonable and strong-minded person will think
of the statement, and not on the basis of the views of
hypersensitive persons who scent danger in every hostile point
of view (paragraph 17)
d. Fourthly, in order to constitute an ofence under Section 153A
of the IPC, two communities must be involved. It is not enough
to hurt the feelings of only one community alone (Paragraph
18)."
9. Counsel then relied upon the decision of this Court in
1 (2007) 5 SCC 1
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the case of 2Joseph Bain D'Souza and anr. Vs. The State of
Maharashtra. He pointed out that despite strong and extreme
language used against the Muslim community and despite the
tense circumstances in which the said editorials which were
subject matter of FIR were written, this Court thought it ft not to
direct the police to register an FIR against the editor of 'Saamna'
under Section 153A of IPC for writing the said editorial. This
because the editorial was a criticism against the anti-national
activities of some of the members of minority community and not
against the minority community as a whole and therefore this
Court was of the view that the article does not come within the
ambit of Section 153A and 153B of Code. Learned Counsel
compared the words used by the Petitioner in her tweet in the
instant case with the extreme and harsh words used by the
editor of 'Saamna' in the Joseph Bain's case (supra) to contend
that Petitioners words were innocuous and harmless in
comparison. He urged that the Petitioner in the present case
was not making the statement against the Muslim community as
a whole but was only criticizing one member of a crowd who was
blaming the Prime Minister of India for the outbreak of Covid - 19
pandemic.
2 1994 SCC Online Bom 461
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10. Relying on the decision of the Division Bench of this
Court in 3
Rajaram Shankar Patwardhan Vs. State of
Maharashtra and anr. in Criminal Application No. 4746 of
2017, learned Counsel pointed out that when the accused is not
the creator of a source material, but has only made a reference
to the such material, maintaining a criminal prosecution in such
circumstances would be an abuse of the process of law. Learned
Counsel placed emphasis on the Sanskrit shlok (verse) cited in
the said decision holding that the way forward for progressive
society is for one thought to be countered by another and not to
prosecute the speaker for saying something which is incorrect.
Relying on the ratio of Rajaram Patwardhan case (supra), learned
Counsel submitted that frstly the Petitioner is not the creator of
the video and therefore cannot be prosecuted for merely
reposting the video, more so when the creator of the video has
not been prosecuted; secondly if the Petitioner has said
something wrong in her video, then the way of a progressive
society is for her thought to be countered with another thought
by some other member of the public and not by prosecuting her.
11. Learned Counsel then invited our attention to the
judgment of the US Supreme Court in the case of 4Whitney Vs.
3 Cri. Application No. 4746 of 2017
4 274 US 357 (1927) (pp.372-376)
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California. He submitted that US Supreme Court delivered a
classic judgment stating that remedy for false speech was "more
speech, not enforced silence" According to him the distinction
was made between mere "advocacy" of a point of view and
"incitement" of an ofence, a test which was subsequently
adopted in Shreya Singhal's case. He urged that Justice Brandeis
laid down the test for imminence by holding that when accused
person delivers a speech, if there is sufcient time for discussion
to take place whereby others can contradict the accused person
with their own thoughts, then the accused person should not be
prosecuted.
12. Learned Counsel then relied on the decision in the
case of 5Cohen Vs. California. The U.S. Supreme Court was
dealing with the case of a person who was convicted for wearing
a jacket in a courthouse which contained a four-lettered abusive
word on it. He pointed out that the Supreme Court reversed the
conviction. While arriving at its decision, Justice Harlan, who
delivered the majority judgment, held that those who were in
the courthouse could have simply averted their eyes. Learned
Counsel quoted the words of Justice Felix Frankfurter holding
that right to freedom of speech and expression include the "right
5 403 U.S.15 (1971) (at pp.19-26)
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to speak foolishly and without moderation'.
13. Reliance was then placed by learned Counsel on the
decision of this Court in the case of 6Shreya Singhal Vs. Union
of India. According to him the Hon'ble Supreme Court has held
that the Judgments of the U.S. Supreme Court have great
persuasive value when it comes to interpreting the right to
freedom of speech and expression in India. He submits that it
has been held in the said case that restrictions on free speech
are even narrower in India than they are in U.S., since in India
there are only 8 specifc exceptions to free speech under Article
19(2) as compared to U.S. Constitution under which the
restrictions can be much broader.
14. Citing the decision in the case of 7Balwant Singh
Vs. State of Punjab where the Supreme Court was considering
the case of two persons who shouted ofensive slogans like
'Khalistan Zindabad' in a crowded place on the day on which the
former Prime Minister of India, Smt. Indira Gandhi was
assassinated, learned Counsel submitted that Supreme Court
held the fact that no public disorder had actually occurred after
6 (2015) 5 SCC 1
7 (1995) 3 SCC 214
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the slogans were uttered was relevant in holding that no ofence
has been committed.
15. It is the submission of learned Counsel that in 8Bilal
Ahmad Kaloo Vs. State of A.P., the Supreme Court was
considering a case of a boy from Kashmir who had visited
Hyderabad and informed young Muslim boys there that the
Indian army was perpetrating atrocities against Muslims in
Kashmir. Learned Counsel submits that despite espousing such
extreme view, the Supreme Court held that no ofence under
Section 153A of IPC is made out unless there are two
communities involved. Learned Counsel urged that applying the
principles in Balwant Singh's and Bilal Ahmed Kaloo's cases to
the instant case, no case is made out against the Petitioner for
the reason frstly, despite having investigated the case from April
2020 onwards, the police have not been able to point out even a
single untoward incident which occurred on account of
Petitioner's speech, and secondly the Petitioner in her tweet has
not referred to even a single community, let alone to two
communities. He thus submitted that as per the principles laid
down in Bilal Kaloo's case, no ofence is made out.
8 (1997) 7 SCC 431
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16. A detailed reference is then made to the decision of
the Hon'ble Supreme Court in the case of Amish Devgan Vs.
Union on India in Writ Petition (Criminal) No. 160 of 2020
decided on 07/12/2020. He submitted that the television
anchor on a prominent news channels (News 18 India and CNBC
Awaaz) has referred to a beloved saint, Moinuddin Chisti, as
"Terrorist Chisti" and "Robber Chisti". The anchor had said that
terrorist Chisti came, Robber Chisti came and thereafter the
religion changed. He pointed out that the Hon'ble Supreme
Court held that the anchor in the said case has impliedly referred
to two communities, Hindus and Muslims, by imputing that "Pir
Hajrat Moinuddin Chisti, a terrorist and robber, had by fear and
intimidation coerced Hindus to embrace Islam".
17. Learned Counsel invited our attention to the test of
'reasonable person' expressed by Hon'ble Supreme Court in
paragraph 49 as 'the words used by accused must be judged
from the standpoint of a reasonable person, not an oversensitive
person who scents danger in every hostile point of view'.
Learned Counsel submitted that the 'reasonable person test' has
not been diluted in any manner in the said judgment. He
submitted that an infuential person such as 'top government or
executive functionary, opposition leader, political or social leader
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of following or a credible anchor on a T.V. show' carries more
credibility and has to exercise his right to free speech with more
restraint, as his/her speech will be taken more seriously than that
of a 'common person on the street'. He submitted that merely
because the Petitioner in the present case has thousands of
followers on Twitter does not mean that she is a social "leader"
as understood by the Supreme Court. He submits that there are
several persons on Twitter who have thousands of followers but
who are not social "leaders" by any stretch of imagination.
According to him, the Petitioner is akin to a "common person on
the street" and her tweet must therefore be treated as such.
Learned Counsel then emphasized that the person is under no
obligation to avoid a controversial or sensitive topic. Even
expressing an extreme opinion does not amount to hate speech.
Learned Counsel further urged that Hon'ble Supreme Court
reiterated the test of imminence, by holding that the likelihood of
harm arising out of the accused's speech must not be remote,
conjectural or far-fetched. He submits that "public tranquillity"
under Section 153A of the IPC does not mean that the accused's
speech must merely afect public serenity, but mean that the
accused 's speech must give rise to violence or an insurrection as
has been explained by the Apex Court.
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18. Accordingly it is submitted that the allegations in the
FIR even if they are taken at their face value and in their entirety
do not prima facie constitute any ofence or make out case
against the Petitioner under Section 153A of IPC. He placed
reliance on the decision of the Hon'ble Supreme Court in the case
of 9State of Haryana Vs. Bhajan Lal to submit that applying
the principles laid down in Bhajanlal's case to the instant case,
the materials accompanying the FIR in the instant case (tweet
and video) and the investigation done by Police from April 2020
onwards do not make out any ofence against the Petitioner.
SUBMISSIONS OF THE RESPONDENTS
19. Shri Manoj Mohite learned Senior Advocate appearing
on behalf of the Respondent - State submitted that FIR against
the Petitioner was lodged by a Police Ofcer who is working in the
Social Media Lab branch of the police department. According to
him this fact assumes immense importance as the complainant
is well experienced and a trained police ofcer who has the
onerous responsibility of monitoring various social media
platforms so as to cull out material from social media which can
cause breach of public order situation. According to him the
complainant police ofcer lodged the FIR against the Petitioner
9 1992 Supp (1) SCC 335
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only after diligently noticing that her tweet is ofensive against
the people of Muslim faith and taking into consideration the
public order situation during the pandemic and the migrant crisis.
This fact according to him gives immense amount of importance
to the FIR as it has not been lodged by a layman but by a trained
police ofcer.
20. Learned Senior Advocate invited our attention to the
video recording and the tweet. He submits that from the tweet
made by the Petitioner it becomes explicitly clear that she has
deliberately distorted facts. Learned Senior Advocate
painstakingly pointed out that what has been claimed by the
Petitioner in her tweet is that the entire crowd was blaming the
Hon'ble Prime Minister whereas if the video is seen it becomes
extremely difcult to ascertain as to who amongst the crowd took
the name of Hon'ble Prime Minister. He urged that the Petitioner
has deliberately amplifed the weakened voice of a single
individual and has projected in her tweet that the entire crowd is
shouting the name of Hon'ble Prime Minister. He emphasised
that the Petitioner has deliberately drawn the attention to a
neighbouring Masjid as the location of the crowd gathering which
was completely unnecessary and uncalled for as the crowd which
had gathered comprised of people of all faiths and in no way was
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the location of the Masjid important or necessary to be stated.
The entire attempt was to wrongly portray it to be a gathering of
members of the Muslim community and blame them for the
spread of the virus.
21. Learned Senior Advocate submits that the tweet was
made on 14/04/2020. According to him, this date assumes
immense importance as there was a nationwide lockdown
declared from 25/03/2020 to 14/04/2020. The nation was
battling with one of the worst crisis befallen on mankind. The
pandemic had infused fear, terror, chaos and confusion in the
minds and hearts of the people. He points out that the crowd
had gathered near the Bandra railway station due to a rumour
circulated that the trains shall be leaving Bandra railway station
to enable the people to reach their native place. He submits
that if a crowd of such huge magnitude assembles at such place,
it defnitely creates a public order situation. The police
machinery realising the sensitivity of the situation asked a
gentleman to address the crowd and thereby pacify them.
However, the Petitioner through her tweet distorted this bonafde
fact and started identifying the crowd gathered by means of their
religion and also by the location at which they had assembled.
This fact in his submission clearly expresses the true intention of
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the Petitioner which is defnitely malafde and is provocative and
instigative in nature.
22. Learned Senior Advocate submitted that video shared
by the Petitioner along with a tweet was further circulated by
other people on twitter wherein further blame was cast on the
people of Muslim faith for spreading Corona virus just as it was
done targeting the people belonging to the Tabligi Jamat, wherein
the virus itself was renamed as the Tabligi Jamat Virus. Learned
Senior Advocate submitted that the tweet of the Petitioner had
far reaching consequences and implications and as a result the
true intent and scope of the Petitioner's tweet needs to be
investigated, which would not be possible if the FIR is quashed.
He submits that the Petitioner's tweet clearly satisfed the
ingredients mentioned in Section 153A(b) as her tweet is
prejudicial to the maintenance of harmony of diferent religious
group and is also likely to disturb public tranquillity.
23. Learned Senior Advocate then submitted that if the
tweeter profle of the Petitioner is examined, it becomes
apparently clear that the Petitioner is an ardent follower of a
particular religion and an ideology. He fairly submits that this
by itself is in no manner an illegal act. However, according to
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him, the said facts assumes immense importance from the point
of view of examining the tweet made by the Petitioner, wherein
she has specifcally targeted people of Muslim faith. He then
provided statistics of the followers which the Petitioner had on
tweeter to indicate the magnitude of the efect and reach of the
Petitioner's tweet. He pointed out that the Petitioner possessed
10.5 thousand followers and also had made around 10.8
thousand re-tweets. Learned Senior Advocate submitted that,
this fact makes it explicitly clear that the Petitioner has a very
popular and ardent following in social media which obviously
elevates her to the position of a social media infuencer.
24. Relying on the decision of the Hon'ble Supreme Court
in the case of Amish Devgan (supra), learned Senior Advocate
submits that people exerting infuence stand on a diferent
footing and are accordingly obligated to exercise more restraint
and speak responsibly. Learned Senior Advocate submits that
the Petitioner enjoys a humongous fan following and as a result
her tweet carries substantial weightage and credence in the
social media. He submits that the Petitioner has clearly abused
this responsibility by making this tweet insinuating that the
people of Muslim faith were responsible for spreading the virus as
a "single source" and the State Government was only doing
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"P.R." and encouraging them. Learned Senior Advocate
submitted that in order to constitute an ofence under Section
153A of the IPC, it is expedient that only mere words should not
be looked into but sometimes the intention is obscured as well as
it may possess an underlying hidden meaning which also needs
to be looked into. According to learned Senior Advocate,
applying the said principle to the tweet of the Petitioner, it
becomes explicitly clear that even though the outward
appearance of the tweet might seem innocuous, still the true
meaning needs to be ascertained on the basis of the surrounding
situation and circumstances engulfng the tweet due to which
investigation is required to ascertain the said hidden meaning of
the tweet.
25. Inviting our attention to the Section 153A of IPC,
learned Senior Advocate submits that section starts with the
word 'promoting' which with all its connotation lays down that
promoting enmity between diferent groups on several grounds is
sufcient to fall within the ambit of this section. He submits that
section 153A in no manner whatsoever envisages a pre-requisite
condition that violence or harm must ensue as a result of the act
of promotion of enmity. Learned Senior Advocate then pointed
out that three FIRs were registered relating to the Bandra railway
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station, wherein one of the FIR is registered against 200 unknown
people due to the reason that a law and order situation had
occurred at the said place and as to whether the said law and
order situation had erupted due to the tweet of the Petitioner is a
matter of investigation and hence according to him the FIR
should not be quashed to allow this investigation. Learned
Senior Advocate was at pains to point out that FIR has to be
judged on the basis of the situation as it then existed when the
FIR was registered and not on basis subsequent events.
26. Learned Senior Advocate also made extensive
reference to the decision of the Hon'ble Supreme Court in the
case of Amish Devgan (supra). His argument is that Hon'ble
Supreme Court having discussed the variable context, intent and
harm, has further clarifed that the FIR need not be quashed
when there are factually disputed arguments raised which can
only been ascertained after the investigation. The same principle
will have application to the instant case as the Petitioner is
raising several disputed questions of facts which are defnitely
matter of investigation, apart from that it is a trite principle of
law that the High Court should exercise its jurisdiction under
section 482 in the rarest of rare case and with circumspection
before quashing the FIR. He submits that same principle was
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applied by Hon'ble Supreme Court in Amish Devgan's case and
accordingly Hon'ble Supreme Court was pleased to reject the
Petition of Amish Devgan for quashing of FIR. He vehemently
urged that the said principle would apply to the present case
and it would be inappropriate to stife the case of the prosecution
at such a nascent stage and hence the present FIR registered
against the Petitioner deserves investigation and should not be
quashed. Learned Senior Advocate then was at pains to point
out that even in Amish Devgan's case, there was no reference to
two diferent religions and communities for according to him, in
fact in the said judgment there were insinuations made against
one community but the inference was drawn that it afected the
other community. He submits that similarly in the present matter
too, the Petitioner has not mentioned two diferent religions,
however, her conduct, the twitter profle and the words used
clearly indicate the intention to involve two communities.
27. Heavily relying on the decision of the Supreme Court
in the case of Amish Devgan, learned Senior Advocate reiterates
that if the tweet of the Petitioner is perused, it becomes clear
that she too has not mentioned two religions, groups or
communities in her tweet, however she has in a very sly manner
made obvious references insinuating people following Muslim
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faith. He submits that the Petitioner's tweet is made with words
in such a manner that the real intention is disguised and
obscured. Similarly, her tweet is capable of causing silent harm.
Learned Senior Advocate emphasised that in order to decipher
the true intent and meaning of the tweet investigation has to be
carried out.
CONSIDERATION
28. We have heard learned Counsel for the parties at
length. The tweet in respect of which the ofence has been
registered under Section 153A made on 14/04/2020 is
reproduced in paragraph 3 of this judgment. The transcript of
the video recording reposted by the Petitioner on Twitter which is
the basis for the allegation that the Petitioner sought to create
enmity between the Hindus and Muslims is reproduced in
paragraph 4 of this judgment.
29. Section 153A of IPC, violation of which forms the
basis of registering the crime against the Petitioner reads thus :
"[153A. Promoting enmity between diferent groups on grounds
of religion, race, place of birth, residence, language, etc., and
doing acts prejudicial to maintenance of harmony.--(1) Whoever
--
(a) by words, either spoken or written, or by signs or by visible
representations or otherwise, promotes or attempts to promote,
on grounds of religion, race, place of birth, residence, language,
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caste or community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill-will between
diferent religious, racial, language or regional groups or castes
or communities, or
(b) commits any act which is prejudicial to the maintenance of
harmony between diferent religious, racial, language or
regional groups or castes or communities, and which disturbs or
is likely to disturb the public tranquillity, [or]
[(c) organizes any exercise, movement, drill or other similar
activity intending that the participants in such activity shall use
or be trained to use criminal force or violence or knowing it to
be likely that the participants in such activity will use or be
trained to use criminal force or violence, or participates in such
activity intending to use or be trained to use criminal force or
violence or knowing it to be likely that the participants in such
activity will use or be trained to use criminal force or violence,
against any religious, racial, language or regional group or caste
or community and such activity for any reason whatsoever
causes or is likely to cause fear or alarm or a feeling of
insecurity amongst members of such religious, racial, language
or regional group or caste or community,]
shall be punished with imprisonment which may extend to three
years, or with fne, or with both.
Ofence committed in place of worship, etc.--(2) Whoever
commits an ofence specifed in sub-section (1) in any place of
worship or in any assembly engaged in the performance of
religious worship or religious ceremonies, shall be punished with
imprisonment which may extend to fve years and shall also be
liable to fne.]
30. It is an admitted position that the Petitioner did not
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create the said video and that no case has been registered
against the person(s) who created the said video. The Petitioner
"reposted" the video which was already created by someone else
on her Twitter feed. In the said video, one person is seen
informing the crowd that Covid-19 pandemic is an act of God,
when another person in the crowd can be heard shouting that the
Covid-19 pandemic is not an act of God but has been brought
about by the Prime Minister of India. It is the submission of the
learned Counsel for the Petitioner that she was unhappy with this
viewpoint and reposted the video in order to criticize the
viewpoint that Covid-19 pandemic was brought about by the
Prime Minister of India. The question for consideration is whether
reposting the video along with the tweet by the Petitioner makes
out a case against the Petitioner thereby constituting ofence
under Section 153A of IPC.
31. In order to appreciate the controversy, we frstly refer
to the decision of the Hon'ble Supreme Court in the case of
Manzar Sayeed Khan (supra). In Manzar Sayeed Khan' case,
Their Lordship were considering the case in respect of an
accused who had published a book which contained pejorative
statements against Shivaji Maharaj. It will be pertinent to
reproduce paragraphs 10, 16, 17, 18, 19, 20, 21 of Manzar
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Sayeed Khan's case where Their Lordships observed thus :
10. On 05.05.2004, the counsel for the appellant submitted
written submissions that no ofence under Section 153 and 153A
was made out against the appellants. During the pendency of
the writ petitions, interim order of stay of further proceedings in
FIR No. 10 of 2004 was granted. The afdavit dated 16.04.2004
fled by Prof. James W. Laine, the author of the book, was taken
on record on 27.04.2004 and the afdavit dated 20.04.2004 fled
by the appellant-publisher of the book, was also taken on record
on 27.04.2004. The High Court on 06.05.2004 recorded an order
that the undertakings given by Prof. James W. Laine as well as by
the appellants were accepted by the Court, but the interim stay
order granted on 23.02.2004, whereby further proceedings in
the FIR were stayed, was vacated holding that the investigation
was not complete and the Court had to see all the statements
recorded after full investigation. The Criminal Writ Petitions fled
by the appellants were kept pending. Now, the order dated
06.05.2004 is impugned before us by the appellants.
16.Section 153-A IPC, as extracted hereinabove, covers a case
where a person by words, either spoken or written, or by signs
or by visible representations or otherwise, promotes or attempts
to promote, disharmony or feelings of enmity, hatred or ill-will
between diferent religious, racial, language or regional groups
or castes or communities or acts prejudicial to the maintenance
of harmony or is likely to disturb the public tranquillity. The gist
of the ofence is the intention to promote feelings of enmity or
hatred between diferent classes of people. The intention to
cause disorder or incite the people to violence is the sine qua
non of the ofence under Section 153-A IPC and the prosecution
has to prove prima facie the existence of mens rea on the part
of the accused. The intention has to be judged primarily by the
language of the book and the circumstances in which the book
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was written and published. The matter complained of within the
ambit of Section 153-A must be read as a whole. One cannot
rely on strongly worded and isolated passages for proving the
charge nor indeed can one take a sentence here and a sentence
there and connect them by a meticulous process of inferential
reasoning.
17. In Ramesh Chotalal Dalal v. Union of India [AIR 1988 SC
775], this Court held that TV serial "Tamas" did not depict
communal tension and violence and the provisions of Section
153A of IPC would not apply to it. It was also not prejudicial to
the national integration falling under Section 153B of IPC.
Approving the observations of Vivian Bose, J. in Bhagvati Charan
Shukla v. Provincial Government [AIR 1947 Nagpur 1], the Court
observed that
"the efect of the words must be judged from the standards
of reasonable, strong-minded, frm and courageous men,
and not those of weak and vacillating minds, nor of those
who scent danger in every hostile point of view... It is the
standard of ordinary reasonable man or as they say in
English Law, 'the man on the top of a Clapham
omnibus'"(Ramesh Case, SCC p. 676, para 13)
18. Again in Bilal Ahmed Kaloo v. State of A.P. [(1997) 7 SCC
431], it is held that the common feature in both the Sections,
viz., Sections 153A and 505 (2), being promotion of feeling of
enmity, hatred or ill-will "between diferent" religious or racial or
linguistic or regional groups or castes and communities, it is
necessary that at least two such groups or communities should
be involved. Further, it was observed that merely inciting the
feeling of one community or group without any reference to any
other community or group cannot attract either of the two
sections.
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19. Prof. James W. Laine, the author of the book, has exercised
his reason and his own analytical skills before choosing any
literature which he intends to include in his book. Even if the
appellant-Manzer Sayeed Khan, a constituted attorney of Oxford
University Press, India and the appellant-Vinod Hansraj Goyal,
Proprietor of the Rashtriya Printing Press, Shahdara, Delhi, or the
persons whose names are mentioned in the acknowledgment by
the author, have provided information for the purpose, including
the said paragraph in the book, it is important and worth
observing that the author has mentioned that BORI, Pune has
been his scholarly home in India and many people therein
helped him for collecting the material. The author has given the
names of many persons, who had helped him in one way or the
other and enlightened him about the history of the historical
hero 'Shivaji'. The author has also mentioned in the book about
the International Conference on Maharashtra, etc., which has
given him a lot of material for inclusion in his book. As it appears
from the records, BORI, Pune was established almost 90 years
back and it has a great tradition of scholarly work. It is very
improbable to imagine that any serious and intense scholar will
attempt to malign the image of this glorious Institute. The
author thought his work to be worth of dedication to his mother
Marie Whitwell Laine, which was purely a scholarly pursuit and
without any intention or motive to involve himself in trouble. It is
the sole responsibility of the State to make positive eforts to
resolve every possible confict between any of the communities,
castes or religions within the State and try every possible way to
establish peace and harmony within the State under every and
all circumstances.
20. In State of Haryana v. Chaudhary Bhajanlal [AIR 1992 SC
604], this Court has observed that an FIR can be quashed if it
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does not disclose an ofence and there is no need for any
investigation or recording of any statement.
21. In the result, for the abovesaid reasons, the respondents
shall not proceed against Professor James W. Laine, the author of
the book, for ofences under Sections 153, 153A and 34 of the
IPC being the subject matter of FIR No. 10 of 2004 registered at
the Deccan Police Station, Pune.
(emphasis supplied)
32. In Balwant Singh's case (supra) the Hon'ble
Supreme Court was considering the case of two persons who
shouted ofensive slogans like "Khalistan Zindabad" in a crowded
place on the date on which the former Prime Minster of India,
Smt.Indira Gandhi was assassinated. Their Lordships in
paragraph 9 observed thus :
"9. Insofar as the ofence under Section 153-A IPC is
concerned, it provides for punishment for promoting enmity
between diferent groups on grounds of religion, race, place of
birth, residence, language, caste or community or any other
ground whatsoever or brings about disharmony or feeling of
hatred or ill-will between diferent religious, racial, linguistic or
regional groups or castes or communities. In our opinion only
where the written or spoken words have the tendency or
intention of creating public disorder or disturbance of law and
order or efect public tranquillity, that the law needs to step in to
prevent such an activity. The facts and circumstances of this case
unmistakably show that there was no disturbance or semblance
of disturbance of law and order or of public order or peace and
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tranquillity in the area from where the appellants were
apprehended while raising slogans on account of the activities of
the appellants. The intention to cause disorder or incite people to
violence is the sine qua non of the ofence under Section 153-A
IPC and the prosecution has to prove the existence of mens rea
in order to succeed. In this case, the prosecution has not been
able to establish any mens rea on the part of the appellants, as
envisaged by the provisions of Section 153-A IPC, by their raising
causally the three slogans a couple of times. The ofence under
Section 153-A IPC is, therefore, not made out. "
(emphasis supplied)
33. In the case of Bilal Ahmed Kaloo's case (supra) the
Hon'ble Supreme Court was considering the case of a boy from
Kashmir who had visited Hyderabad and informed young Muslim
boys there that the Indian army was perpetrating atrocities
against Muslims in Kashmir. The relevant paragraphs 9, 12, 15,
16 which are material read thus :
"9. Evidence of the prosecution relating to ofences under Section
153-A and 505(2) IPC consists of oral testimony of certain
witnesses who claimed that appellant was telling others that the
Army personnel have been committing atrocities on Muslims in
Kashmir. Among those witnesses PW 7, PW 12 and PW 13 were
not cross-examined at all. Accepting their evidence, it can be held
without any difculty that prosecution has established beyond
doubt that appellant was spreading the news that members of
the Indian Army were indulging in commission of atrocities
against Kashmiri Muslims. So it is not necessary to advert to the
other evidence which only repeats what those witnesses said.
Hence the question to be decided now is whether those acts of
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the appellant would attract the penal consequences envisaged in
Section 153-A or 505(2) of IPC.
12. The main distinction between the two ofences is that while
publication of the words or representation is not necessary under
the former, such publication is sine qua non under Section 505.
The words "whoever makes, publishes or circulates" used in the
setting of Section 505(2) cannot be interpreted disjunctively but
only as supplementary to each other. If it is construed
disjunctively, anyone who makes a statement falling within the
meaning of Section 505 would, without publication or circulation,
be liable to conviction. But the same is the efect with Section
153-A also and then that Section would have been bad for
redundancy. The intention of the legislature in providing two
diferent sections on the same subject would have been to cover
two diferent felds of similar colour. The fact that both sections
were included as a package in the same amending enactment
lends further support to the said construction.
15. The common feature in both sections being promotion of
feeling of enmity, hatred or ill-will "between diferent" religious or
racial or linguistic or regional groups or castes and communities,
it is necessary that at least two such groups or communities
should be involved. Merely inciting the feeling of one community
or group without any reference to any other community or group
cannot attract either of the two sections.
16. The result of the said discussion is that appellant who has
not done anything as against any religious, racial or linguistic or
regional group or community cannot be held guilty of either the
ofence under Section 153A or under Section 505(2) of IPC."
(emphasis supplied)
34. In Shreya Singhal's case (supra), Hon'ble Supreme
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Court referred to the decision of US Supreme Court in the case of
Whitney Vs. California (supra), relevant paragraphs of which read
thus:
13. This leads us to a discussion of what is the content of the
expression "freedom of speech and expression". There are three
concepts which are fundamental in understanding the reach of
this most basic of human rights. The frst is discussion, the
second is advocacy, and the third is incitement. Mere discussion
or even advocacy of a particular cause howsoever unpopular is at
the heart of Article 19(1)(a). It is only when such discussion or
advocacy reaches the level of incitement that Article 19(2) kicks
in. It is at this stage that a law may be made curtailing the
speech or expression that leads inexorably to or tends to cause
public disorder or tends to cause or tends to afect the
sovereignty & integrity of India, the security of the State, friendly
relations with foreign States, etc. Why it is important to have
these three concepts in mind is because most of the arguments
of both petitioners and respondents tended to veer around the
expression "public order".
14. It is at this point that a word needs to be said about the use
of American judgments in the context of Article 19(1)(a). In
virtually every signifcant judgment of this Court, reference has
been made to judgments from across the Atlantic. Is it safe to do
so?
15. It is signifcant to notice frst the diferences between the US
First Amendment and Article 19(1)(a) read with Article 19(2). The
frst important diference is the absoluteness of the US First
Amendment - Congress shall make no law which abridges the
freedom of speech. Second, whereas the US First Amendment
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speaks of freedom of speech and of the press, without any
reference to "expression", Article 19(1)(a) speaks of freedom of
speech and expression without any reference to "the press".
Third, under the US Constitution, speech may be abridged,
whereas under our Constitution, reasonable restrictions may be
imposed. Fourth, under our Constitution such restrictions have to
be in the interest of eight designated subject matters - that is any
law seeking to impose a restriction on the freedom of speech can
only pass muster if it is proximately related to any of the eight
subject matters set out in Article 19(2).
16. Insofar as the frst apparent diference is concerned, the US
Supreme Court has never given literal efect to the declaration
that Congress shall make no law abridging the freedom of
speech. The approach of the Court which is succinctly stated in
one of the early US Supreme Court Judgments, continues even
today. In Chaplinsky v. New Hampshire, [ 86 L. Ed. 1031: 315 US
568 (1942)], Murphy J. who delivered the opinion of the Court put
it thus: (L Ed p.1035)
"Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of
free speech is not absolute at all times and under all
circumstances. There are certain well defned and narrowly
limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the
libelous, and the insulting or 'fghting' words-those which by their
very utterance infict injury or tend to incite an immediate breach
of the peace. It has been well observed that such utterances are
no essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any beneft that may be
derived from them is clearly outweighed by the social interest in
order and morality. 'Resort to epithets or personal abuse is not in
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any proper sense communication of information or opinion
safeguarded by the Constitution, and its punishment as a criminal
act would raise no question under that instrument.' Cantwell v.
Connecticut, [ 310 U.S. 296 : 60 S.Ct. 900 : 84 L.Ed.1213 : 128
ALR. 1352 (1940), US pp. 309, 310 : S Ct p.906"
17. So far as the second apparent diference is concerned, the
American Supreme Court has included "expression" as part of
freedom of speech and this Court has included "the press" as
being covered under Article 19(1)(a), so that, as a matter of
judicial interpretation, both the US and India protect the freedom
of speech and expression as well as press freedom. Insofar as
abridgment and reasonable restrictions are concerned, both the
US Supreme Court and this Court have held that a restriction in
order to be reasonable must be narrowly tailored or narrowly
interpreted so as to abridge or restrict only what is absolutely
necessary. It is only when it comes to the eight subject matters
that there is a vast diference. In the US, if there is a compelling
necessity to achieve an important governmental or societal goal,
a law abridging freedom of speech may pass muster. But in India,
such law cannot pass muster if it is in the interest of the general
public. Such law has to be covered by one of the eight subject -
matters set out under Article 19(2). If it does not, and is outside
the pale of 19(2), Indian courts will strike down such law.
18. Viewed from the above perspective, American judgments
have great persuasive value on the content of freedom of speech
and expression and the tests laid down for its infringement. It is
only when it comes to subserving the general public interest that
there is the world of a diference. This is perhaps why in
Kameshwar Prasad . v. The State of Bihar [1962 Supp (3) SCR 369
: AIR 1962 SC 1166], this Court held: (SCR p. 378 : AIR pp.
1169-70, para 8)
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"As regards these decisions of the American Courts, it should be
borne in mind that though the First Amendment to the
Constitution of the United State reading "Congress shall make no
law.... abridging the freedom of speech..." appears to confer no
power on the Congress to impose any restriction on the exercise
of the guaranteed right, still it has always been understood that
the freedom guaranteed is subject to the police power - the
scope of which however has not been defned with precision or
uniformly. It is on the basis of the police power to abridge that
freedom that the constitutional validity of laws penalising libels,
and those relating to sedition, or to obscene publications etc., has
been sustained. The resultant fexibility of the restrictions that
could be validly imposed renders the American decisions
inapplicable to and without much use for resolving the questions
arising under Art. 19(1) (a) or (b) of our Constitution wherein the
grounds on which limitations might be placed on the guaranteed
right are set out with defniteness and precision."
(emphasis supplied)
35. At this juncture itself we refer to the decision in
Whitney Vs.California (supra) to appreciate the test for
imminence which Justice Brandeis laid down and held as follows.
"Those who won our independence believed that the fnal end of
the state was to make men free to develop their faculties, and that
in its government the deliberative forces should prevail over the
arbitrary. They valued liberty both as an end and as a means.
They believed liberty to the secret of happiness and courage to be
the secret of liberty. They believed that freedom to think as you
will and to speak as you think are means indispensable to the
discovery and spread of political truth; that without free speech
and assembly discussion would be futile; that with them,
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discussion afords ordinarily adequate protection against the
dissemination of noxious doctrine; that the greatest menace to
freedom is an inert people; that public discussion is a political
duty; and that this should be a fundamental principle of the
American government. They recognized the risks to which all
human institutions are subject. But they knew that order cannot
be secured merely through fear of punishment for its infraction;
that it is hazardous to discourage thought, hope and imagination;
that fear breeds repression; that repression breeds hate; that hate
menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed
remedies; and that the ftting remedy for evil counsels is good
ones. Believing in the power of reason as applied through public
discussion, they eschewed silence coerced by law-the argument of
force in its worst form. Recognizing the occasional tyrannies of
governing majorities, they amended the Constitution so that free
speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of
free speech and assembly. Men feared witches and burnt women.
It is the function of speech to free men from the bondage of
irrational fears. To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free speech
is practiced. There must be reasonable ground to believe that the
danger apprehended is imminent. There must be reasonable
ground to believe that the evil to be prevented is a serious one.
Every denunciation of existing law tends in some measure to
increase the probability that there will be violation of it.
Condonation of a breach enhances the probability. Expressions of
approval add to the probability. Propagation of the criminal state
of mind by teaching syndicalism increases it. Advocacy of law-
breaking heightens it still further. But even advocacy of violation,
however reprehensible morally, is not a justifcation for denying
free speech where the advocacy falls short of incitement and there
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is nothing to indicate that the advocacy would be immediately
acted on. The wide diference between advocacy and incitement,
between preparation and attempt, between assembling and
conspiracy, must be borne in mind. In order to support a fnding of
clear and present danger it must be shown either that immediate
serious violence was to be expected or was advocated, or that the
past conduct furnished reason to believe that such advocacy was
then contemplated.
Those who won our independence by revolution were not
cowards. They did not fear political change. They did not exalt
order at the cost of liberty. To courageous, self-reliant men, with
confdence in the power of free and fearless reasoning applied
through the processes of popular government, no danger fowing
from speech can be deemed clear and present, unless the
incidence of the evil apprehended is so imminent that it may befall
before there is opportunity for full discussion. If there be time to
expose through discussion the falsehood and fallacies, to avert the
evil by the processes of education, the remedy to be applied is
more speech, not enforced silence. Only an emergency can justify
repression. Such must be the rule if authority is to be reconciled
with freedom. Such, in my opinion, is the command of the
Constitution. It is therefore always open to Americans to challenge
a law abridging free speech and assembly by showing that there
was no emergency justifying it."
(emphasis supplied)
36. We may also proftably refer to the decision in Cohen
Vs. California (supra) where it is held as follows.
"Appellant's conviction, then, rests squarely upon his exercise of
the "freedom of speech" protected from arbitrary governmental
interference by the Constitution, and can be justifed, if at all,
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only as a valid regulation of the manner in which he exercised
that freedom, not as a permissible prohibition on the substantive
message it conveys. This does not end the inquiry, of course, for
the First and Fourteenth Amendments have never been thought
to give absolute protection to every individual to speak whenever
or wherever he pleases, or to use any form of address in any
circumstances that he chooses. In this vein, too, however, we
think it important to note that several issues typically associated
with such problems are not presented here. In the second place,
as it comes to us, this case cannot be said to fall within those
relatively few categories of instances where prior decisions have
established the power of government to deal more
comprehensively with certain forms of individual expression
simply upon a showing that such a form was employed. This is
not, for example, an obscenity case. Whatever else may be
necessary to give rise to the States' broader power to prohibit
obscene expression, such expression must be, in some signifcant
way, erotic. Roth v. United States, 354 U.S. 476 (1957). It cannot
plausibly be maintained that this vulgar allusion to the Selective
Service System would conjure up such psychic stimulation in
anyone likely to be confronted with Cohen's crudely defaced
jacket.
....
In this regard, persons confronted with Cohen's jacket were in a
quite diferent posture than, say, those subjected to the raucous
emissions of sound trucks blaring outside their residences. Those in the
Los Angeles courthouse could efectively avoid further bombardment of
their sensibilities simply by averting their eyes.
....
At the outset, we cannot overemphasize that, in our judgment, most
situations where the State has a justifable interest in regulating
speech will fall within one or more of the various established
exceptions, discussed above but not applicable here, to the usual rule
that governmental bodies may not prescribe the form or content of
individual expression. Equally important to our conclusion is the
constitutional backdrop against which our decision must be made. The
constitutional right of free expression is powerful medicine in a society
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as diverse and populous as ours. It is designed and intended to remove
governmental restraints from the arena of public discussion, putting
the decision as to what views shall be voiced largely into the hands of
each of us, in the hope that use of such freedom will ultimately
produce a more capable citizenry and more perfect polity and in the
belief that no other approach would comport with the premise of
individual dignity and choice upon which our political system rests. See
Whitney v. California, 274 U.S. 357, 375--377[1927] (Brandeis, J.,
concurring).
To many, the immediate consequence of this freedom may often
appear to be only verbal tumult, discord, and even ofensive utterance.
These are, however, within established limits, in truth necessary side
efects of the broader enduring values which the process of open
debate permits us to achieve. That the air may at times seem flled
with verbal cacophony is, in this sense not a sign of weakness but of
strength. We cannot lose sight of the fact that, in what otherwise might
seem a trifing and annoying instance of individual distasteful abuse of
a privilege, these fundamental societal values are truly implicated.
That is why '(w)holly neutral futilities ... come under the protection of
free speech as fully as do Keats' poems or Donne's sermons,' Winters v.
New York, 333 U.S. 507, 528[1948] (Frankfurter, J., dissenting), and
why 'so long as the means are peaceful, the communication need not
meet standards of acceptability,' Organization for a Better Austin v.
Keefe, 402 U.S. 415, (1971).
Against this perception of the constitutional policies involved, we
discern certain more particularized considerations that peculiarly call
for reversal of this conviction. First, the principle contended for by the
State seems inherently boundless. How is one to distinguish this from
any other ofensive word? Surely the State has no right to cleanse
public debate to the point where it is grammatically palatable to the
most squeamish among us. Yet no readily ascertainable general
principle exists for stopping short of that result were we to afrm the
judgment below. For, while the particular four-letter word being
litigated here is perhaps more distasteful than most others of its genre,
it is nevertheless often true that one man's vulgarity is another's lyric.
Indeed, we think it is largely because governmental ofcials cannot
make principled distinctions in this area that the Constitution leaves
matters of taste and style so largely to the individual.
Additionally, we cannot overlook the fact, because it is well
illustrated by the episode involved here, that much linguistic
expression serves a dual communicative function: it conveys not only
ideas capable of relatively precise, detached explication, but otherwise
inexpressible emotions as well. In fact, words are often chosen as much
for their emotive as their cognitive force. We cannot sanction the view
that the Constitution, while solicitous of the cognitive content of
individual speech has little or no regard for that emotive function which
practically speaking, may often be the more important element of the
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overall message sought to be communicated. Indeed, as Mr. Justice
Frankfurter has said, '(o)ne of the prerogatives of American citizenship
is the right to criticize public men and measures--and that means not
only informed and responsible criticism but the freedom to speak
foolishly and without moderation". Baumgartner V. United States, 322
U.S. 665, 673-674 (1944).
Finally, and in the same vein, we cannot indulge the facile
assumption that one can forbid particular words without also running a
substantial risk of suppressing ideas in the process. Indeed,
governments might soon seize upon the censorship of particular words
as a convenient guise for banning the expression of unpopular views.
We have been able, as noted above, to discern little social beneft that
might result from running the risk of opening the door to such grave
results."
(emphasis supplied)
37. In Amish Devgan's (supra) case, the Hon'ble
Supreme Court was considering the case where a television
anchor on a prominent news channels (News 18 India and CNBC
Awaaz) had referred to a beloved saint, Moinuddin Chisti, as
"Terrorist Chisti" and "Robber Chisti". The anchor had said that
"Terrorist Chisti came. Robber Chisti came thereafter the
religion changed. Their Lordships held that the said case
impliedly referred to two communities, Hindus and Muslims. It
would be material to refer to paragraphs 49, 51, 52, 56, 58, 60,
62, 64, 78, 79 & 87 which read thus :
49. On the aspect of content, Ramesh states that the efect of the
words must be judged from the standard of reasonable,
strongminded, frm and courageous men and not by those who
are weak and ones with vacillating minds, nor of those who scent
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danger in every hostile point of view. The test is, as they say in
English Law, - 'the man on the top of a Clapham omnibus'.
Therefore, to ensure maximisation of free speech and not create
'free speaker's burden', the assessment should be from the
perspective of the top of the reasonable member of the public,
excluding and disregarding sensitive, emotional and atypical. It is
almost akin or marginally lower than the prudent man's test. The
test of reasonableness involves recognition of boundaries within
which reasonable responses will fall, and not identifcation of a
fnite number of acceptable reasonable responses. Further, this
does not mean exclusion of particular circumstances as frequently
diferent persons acting reasonably will respond in diferent ways
in the context and circumstances. This means taking into account
peculiarities of the situation and occasion and whether the group
is likely to get ofended. At the same time, a tolerant society is
entitled to expect tolerance as they are bound to extend to
others.
51. The 'context', as indicated above, has a certain key variable,
namely, 'who' and 'what' is involved and 'where' and the
'occasion, time and under what circumstances' the case arises.
The 'who' is always plural for it encompasses the speaker who
utters the statement that constitutes 'hate speech' and also the
audience to whom the statement is addressed which includes
both the target and the others. Variable context review recognises
that all speeches are not alike. This is not only because of group
afliations, but in the context of dominant group hate speech
against a vulnerable and discriminated group, and also the impact
of hate speech depends on the person who has uttered the words.
The variable recognises that a speech by 'a person of infuence'
such as a top government or executive functionary, opposition
leader, political or social leader of following, or a credible anchor
on a T.V. show carries a far more credibility and impact than a
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statement made by a common person on the street. Latter may
be driven by anger, emotions, wrong perceptions or mis-
information. This may afect their intent. Impact of their speech
would be mere indiference, meet correction/criticism by peers, or
sometimes negligible to warrant attention and hold that they were
likely to incite or had attempted to promote hatred, enmity etc.
between diferent religious, racial, language or regional groups.
Further, certain categories of speakers may be granted a degree
of latitude in terms of the State response to their speech.
Communities with a history of deprivation, oppression, and
persecution may sometimes speak in relation to their lived
experiences, resulting in the words and tone being harsher and
more critical than usual. Their historical experience often comes
to be accepted by the society as the rule, resulting in their words
losing the gravity that they otherwise deserve. In such a situation,
it is likely for persons from these communities to reject the tenet
of civility, as polemical speech and symbols that capture the
emotional loading can play a strong role in mobilising. Such
speech should be viewed not from the position of a person of
privilege or a community without such a historical experience, but
rather, the courts should be more circumspect when penalising
such speech. This is recognition of the denial of dignity in the
past, and the efort should be reconciliatory. Nevertheless, such
speech should not provoke and 'incite' - as distinguished from
discussion or advocacy - 'hatred' and violence towards the
targeted group. Likelihood or similar statutory mandate to
violence, public disorder or 'hatred' when satisfed would result in
penal action as per law. Every right and indulgence has a limit.
Further, when the ofending act creates public disorder and
violence, whether alone or with others, then the aspect of 'who'
and question of indulgence would lose signifcance and may be of
little consequence.
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52. Persons of infuence, keeping in view their reach, impact and
authority they yield on general public or the specifc class to which
they belong, owe a duty and have to be more responsible. They
are expected to know and perceive the meaning conveyed by the
words spoken or written, including the possible meaning that is
likely to be conveyed. With experience and knowledge, they are
expected to have a higher level of communication skills. It is
reasonable to hold that they would be careful in using the words
that convey their intent. The reasonable-man's test would always
take into consideration the maker. In other words, the expression
'reasonable man' would take into account the impact a particular
person would have and accordingly apply the standard, just like
we substitute the reasonable man's test to that of the reasonable
professional when we apply the test of professional negligence.
This is not to say that persons of infuence like journalists do not
enjoy the same freedom of speech and expression as other
citizens, as this would be grossly incorrect understanding of what
has been stated above. This is not to dilute satisfaction of the
three elements, albeit to accept importance of 'who' when we
examine 'harm or impact element' and in a given case even
'intent' and/or 'content element'.
56. Our observations are not to say that persons of infuence or
even common people should fear the threat of reprisal and
prosecution, if they discuss and speak about controversial and
sensitive topics relating to religion, caste, creed, etc. Such debates
and right to express one's views is a protected and cherished right
in our democracy. Participants in such discussions can express
divergent and sometimes extreme views, but should not be
considered as 'hate speech' by itself, as subscribing to such a view
would stife all legitimate discussions and debates in public
domain. Many a times, such discussions and debates help in
understanding diferent view-points and bridge the gap. Question
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is primarily one of intent and purpose. Accordingly, 'good faith'
and 'no legitimate purpose' exceptions would apply when
applicable.
58. On the question of harm, the legislations refer to actual or
sometimes likely or anticipated danger, of which the latter must
not be remote, conjectural or farfetched. It should have proximate
and direct nexus with the expression 'public order' etc. Otherwise,
the commitment to freedom of expression and speech would be
suppressed without the community interest being in danger. In the
Indian context, the tests of 'clear and present danger' or
'imminent lawless action' unlike United States, are identical as has
been enunciated in the case of Shreya Singhal. The need to
establish proximity and causal connection between the speech
with the consequences has been dealt with and explained in Dr.
Ram Manohar Lohia in great detail. In the case of actual
occurrence of public disorder, the cause and efect relationship
may be established by leading evidence showing the relationship
between the 'speech' and the resultant 'public disorder'. In other
cases where public disorder has not occurred due to police, third
party intervention, or otherwise, the 'clear and present danger' or
'imminent lawless action' tests are of relevance and importance.
'Freedom and rational' dictum should be applied in absence of
actual violence, public disorder etc. Further, when reference is to
likelihood, the chance is said to be likely when the possibility is
reasonably or rather fairly certain, i.e. fairly certain to occur than
not. Therefore, in absence of actual violence, public disorder, etc.,
something more than words, in the form of 'clear and present
danger' or 'imminent lawless action', either by the maker or by
others at the maker's instigation is required. This aspect has been
examined subsequently while interpreting the penal provisions.
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60. We would now interpret Section 153A of the Penal Code, which
reads as under: ....
62. The Calcutta High Court in P.K. Chakravarty had delved into
the question of intention and had observed that the intention as
to whether or not the person accused was promoting enmity is to
be collected from the internal evidence of the words themselves,
but this is not to say that other evidence cannot be looked into.
Likewise, while examining the question of likelihood to promote
ill-feelings the facts and circumstances of that time must be
taken into account. Something must be known of the kind of
people to whom the words are addressed. Words will be generally
decisive, especially in those cases where the intention is
expressly declared if the words used naturally, clearly or
indubitably have such tendency. Then, such intention can be
presumed as it is the natural result of the words used. However,
the words used and their true meaning are never more than
evidence of intention, and it is the real intention of the person
charged that is the test. The judgment rejects the concept of
constructive intention. Similarly, the Lahore High Court in Devi
Sharan Sharma had observed that intention can be deduced from
internal evidence of the words as well as the general policy of the
paper in which the concerned article was published, consideration
of the person for whom it was written and the state of feeling
between the two communities involved. In case the words used in
the article are likely to produce hatred, they must be presumed to
be intended to have that efect unless the contrary is shown. The
Bombay High Court in Gopal Vinayak Godse has observed that
the intention to promote enmity or hatred is not a necessary
ingredient of the ofence. It is enough to show that the language
of the writing is of the nature calculated to promote feelings of
enmity or hatred, for a person must be presumed to intend the
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natural consequences of his act. The view expressed by the
Bombay High Court in Gopal Vinayak Godse lays considerable
emphasis on the words itself, but the view expressed in P.K.
Chakravarthy and Devki Sharma take a much broader and a
wider picture which, in our opinion, would be the right way to
examine whether an ofence under Section 153A, clauses (a) and
(b) had been committed. The ordinary reasonable meaning of the
matter complained of may be either the literal meaning of the
published matter or what is implied in that matter or what is
inferred from it. A particular imputation is capable of being
conveyed means and implies it is reasonably so capable and
should not be strained, forced or subjected to utterly
unreasonable interpretation. We would also hold that deliberate
and malicious intent is necessary and can be gathered from the
words itself- satisfying the test of top of Clapham omnibus, the
who factor- person making the comment, the targeted and non
targeted group, the context and occasion factor- the time and
circumstances in which the words or speech was made, the state
of feeling between the two communities, etc. and the proximate
nexus with the protected harm to cumulatively satiate the test of
'hate speech'. 'Good faith' and 'no legitimate purpose' test
would apply, as they are important in considering the intent
factor.
64. In the context of Section 153A(b) we would hold that public
tranquillity, given the nature of the consequence in the form of
punishment of imprisonment of up to three years, must be read in
a restricted sense synonymous with public order and safety and
not normal law and order issues that do not endanger the public
interest at large. It cannot be given the widest meaning so as to
fall foul of the requirement of reasonableness which is a
constitutional mandate. Clause (b) of Section 153A, therefore, has
to be read accordingly to satisfy the constitutional mandate. We
would interpret the words 'public tranquillity' in clause (b) would
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mean ordre publique a French term that means absence of
insurrection, riot, turbulence or crimes of violence and would also
include all acts which will endanger the security of the State, but
not acts which disturb only serenity, and are covered by the third
and widest circle of law and order. Public order also includes acts
of local signifcance embracing a variety of conduct destroying or
menacing public order. Public Order in clause (2) to Article 19 nor
the statutory provisions make any distinction between the
majority and minority groups with reference to the population of
the particular area though as we have noted above this may be of
some relevance. When we accept the principle of local
signifcance, as a sequitur we must also accept that majority and
minority groups could have, in a given case, reference to a local
area.
78. We have already reproduced relevant portions of the transcript
of the debate anchored by the petitioner. It is apparent that the
petitioner was an equal co-participant, rather than a mere host.
The transcript, including the ofending portion, would form a part of
the 'content', but any evaluation would require examination and
consideration of the variable 'context' as well as the 'intent' and
the 'harm/impact'. These have to be evaluated before the court
can form an opinion on whether an ofence is made out. The
evaluative judgment on these aspects would be based upon facts,
which have to be inquired into and ascertained by police
investigation. 'Variable content', 'intent' and the 'harm/impact'
factors, as asserted on behalf of the informants and the State, are
factually disputed by the petitioner. In fact, the petitioner relies
upon his apology, which as per the respondents/informants is an
indication or implied acceptance of his acts of commission.
79. Having given our careful and in-depth consideration, we do not
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think it would be appropriate at this stage to quash the FIRs and
thus stall 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 infuence 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 fled. The court would apply its mind whether
or not to take cognisance and issue summons. By an interim order,
the petitioner has enjoyed protection against coercive steps arising
out of and relating to the program telecast on 15.06.2020. Subject
to the petitioner cooperating in the investigation, we direct that no
coercive steps for arrest of the petitioner need be taken by the
police during investigation. In case and if charge-sheet is fled, the
court would examine the question of grant of bail without being
infuenced by these directions as well as any fndings of fact
recorded in this judgment.
87. In view of the aforesaid discussion, we decline and reject the
prayer of the petitioner for quashing of the FIRs but have granted
interim protection to the petitioner against arrest subject to his
joining and cooperating in investigation till completion of the
investigation in terms of our directions in paragraphs 79 and 85
above. We have however accepted the prayer of the petitioner for
transfer of all pending FIRs in relation to and arising out of the
telecast/episode dated 15th June 2020 to P.S. Dargah, Ajmer,
Rajasthan, where the frst FIR was registered. On the third prayer,
we have asked the concerned states to examine the threat
perception of the petitioner and family members and take
appropriate steps as may be necessary. "
(emphasis supplied)
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38. We may also refer to the decisions of this Court in
case of 'Joseph Bain' (supra). It is the submission of learned
Counsel for the Petitioner that despite strong and extreme
language used against the Muslim community, and despite the
tense circumstances prevailing at the time when the said
editorials were written, this Court thought it ft not to direct the
police to register an FIR against the editor of the 'Saamna' under
Section 153A of IPC for writing the said editorials. This Court
observed thus :
23. If we take into consideration the article as a whole, it is
clear that the criticism is against anti-national or traitorous
section of Muslims and their selfsh leaders who are creating rift
between Hindus and Muslims and in the aforesaid portion
reference is also made that Muslims should understand the
sentiments of Hindu majority and merge themselves in the
national mainstream instead of being carried away by the selfsh
leaders who were prompting to attack Hindus. The Central
Government is also castigated for dissolving the B.J.P.
Government in U.P. The entire thrust of this article is against the
Congress Government for adopting the lukewarm policy against
the anti-national Muslims for the sake of votes, which according
to the editorial ultimately resulted in communal riots. The
readers of the editorial are not likely to develop hatred, spite or
ill-will against Muslims as a whole but may develop hatred
towards those Muslims indulging in anti-national activities. The
criticism is against those Muslims who are indulging in the act of
violence on the streets and desecrating Hindu deities and
temples and they are referred to as traitors, because, according
to the editor, no religion, no country, no God, no culture can
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approve it. The criticism is not against the Muslims as a whole
but only against anti-social elements in the Muslim community.
31. After going through the portion relied upon by the
petitioners and the respondents, it is clear that the whole
criticism is against the minorities who indulge in anti-national
traitorous activities and since the Government is not taking
proper action against these anti-national members of the
minority communities such as Muslims, Sikhs, Christians and the
like, the Hindus are held at ransom. The editorial is a criticism
against anti-national activities of the members of the minority
community and not against the minority community as a whole
and, therefore, this article does not come within the ambit of
section 153A and 153B of the Code.
40. The aforesaid article, when read an a whole, refers to the
activities of Muslim traitors who were destroying culture,
tradition, piety, family, law, truth, afection, public
administration and such other cherished values and showing
their cruelty before the police and army. The article also
criticised tendency of these Muslims who treat religion as frst
and nation as secondary. The main thrust of the article is against
the lukewarm attitude shown by the S.R.P. and police at the
behest of the Government when in the riots persons were killed.
This also in our opinion does not attract provisions of section
153A and 153B of the Code.
45. After going through all the aforesaid articles which were
published from time to time after the fall of Babri Masjid and in
the wake of riots which broke out in the areas predominantly
occupied by Muslims, it appears that criticism is levelled against
anti-national Muslims, who at the behest of Pakistani agents,
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poured poison in the minds of local Muslims and developed
hatred in their minds against Hindus in Bombay which
ultimately resulted in unprecedented riots. According to these
articles, by the fssiparous mentality created in the minds of
Muslims by the aforesaid anti-social elements, Muslims started
drifting from the mainstream of life. According to the said
editorials, had the Government curbed the anti-national
activities of the said Muslims, this would not have resulted in
ugly situation. These articles further observed that the
appeasing attitude of the Government towards the minority for
getting votes created dangerous situation in India. These
articles do not criticise Muslims as a whole but criticise Muslims
who were traitors to India. This attitude of the Government,
according to these articles, provided Pakistan an opportunity to
create explosive situation like atom bomb in India. The main
thrust of these articles is against anti-national Muslims and
attitude of police and the Government. In these articles
reference is also made to respect holy Koran which, according
to the editor, not only belongs to the Muslims but to the whole
humanity. In the said editorials appeal was also made to the
Muslims to forget the past and to join the mainstream of public
life in India. It is true that in some of these articles due to the
emotional outburst high-fown and caustic language is used but
this per se will not fall within the mischief of sections 153A and
153B of the Code.
50. We have already expressed that these articles do not come
within the mischief of section 153A and 153B of the Code. We
are further of the opinion that looking at the recent monstrous
riots and the result thereof, both the communities must have
realised that path of ill-will, spite and hatred against each other
will beneft none but surely destroy both. Taking the experience
from the past events, both the communities have started
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forgetting the ill feelings thereby creating communal harmony
and leading the life as a part of the mainstream of this country
towards prosperity and, therefore, from this point of view also, it
is not desirable to reopen the old issue afresh. With these
observations, we dismiss the criminal writ petition, Rule
discharged."
(emphasis supplied)
39. A reference to the observations of Division Bench of
this Court in Rajaram Shankar Patwardhan's case is also
material. This Court held thus :
11. It is also not in dispute that the thought expressed by the
writer was immediately countered by another writer. In our
opinion, this was a proper way to counter a thought by another
thought. It is also accepted way of a progressive society i.e. to
counter one thought if it is lacking in study by another thought
which is based on a better research. It will not be out of place for
us to refer an often quoted principle in Sanskrit read as " okns okns
t;rs rRo cks/kk". It can be loosely translated as if one submission
is countered by another submission, it helps to understand the
principle in a better way and there cannot be any criticism for
accepting such a method.
12. In so far as attracting the provisions, Mr. Paranjape was
absolutely justifed in submitting that attracting Section 153-A
was a serious error committed. It may not be out of place to
refer to the observations of the Hon'ble Apex Court while dealing
with this Section in the Judgment Balwant Singh and Anr. V/s
State of Punjab, reported in AIR 1995 Supreme Court 1785.
Hon'ble Apex Court observed thus :
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"In so far as the fndings under Section 153A of Indian
Penal Code is concerned it provides for punishment for
promoting enmity between diferent groups on grounds
of religion, race, place of birth, residence, language,
caste or community or any other ground whatsoever or
brings about disharmony or feeling of hatred or ill-will
between diferent religious, racial, language or regional
groups or castes or communities. It is only where the
written or spoken words have the tendency or intention
of creating public disorder or disturbance of law and
order or afect public tranquillity, that the law needs to
step in, to prevent such an activity. The intention to
cause disorder or incite people to violence is the sine
qua non of the ofence under Section 153A, I. P. C. and
the prosecution has to prove the existence of mens rea
in order to succeed."
As the matter relates to epic of Mahabharata and as the article
refers to its source, it will not be out of place to refer the work
under title "Sampoorna Mahabharata", Pro. Bhalba Kelkar. It also
refers to as Adiparv Adhyay 1st and then there is also reference to
Adhyay 105th . Thus, what reveals is, this source material referred
to by the writer of the article is not his own creation. If it is not
the own creation of the writer if it is a reference to a source
material then Mr. Paranjape the learned Counsel for the applicant
was wholly justifed in submitting that lodgment of the report and
for an unsustainable material attracting criminal provisions and
asking the applicant to face a criminal prosecution would nothing
but an abuse of process of law. Considering all these facts we are
of the opinion that the counsel for the applicant had made out a
case for grant of relief as prayed in the application.
13. On the backdrop of these facts, we are unable to accept the
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submission of Mr. Thombre that writer of the article misused the
freedom of expression."
(emphasis supplied)
40. So far as under what circumstances FIR can be
quashed has been authoritatively dealt with by the Hon'ble
Supreme Court in the case of Bhajanlal (supra). Para 102 which
is relevant reads thus :
102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced above, we
give the following categories of cases by way of illustration
wherein such power could be exercised either to prevent abuse
of the process of any Court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise,
clearly defned and sufciently channelised and infexible
guidelines or rigid formulae and to give an exhaustive list of
myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the First Information Report
or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
ofence or make out a case against the accused.
(2) Where the allegations in the First Information Report and
other materials, if any, accompanying the FIR do not disclose a
cognizable ofence, justifying an investigation by police ofcers
under Section 156 (1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code.
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(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do
not disclose the commission of any ofence and make out a case
against the accused.
(4) Where, the allegations in the FIR do not constitute a
cognizable ofence but constitute only a non-cognizable ofence,
no investigation is permitted by a police ofcer without an order
of a Magistrate as contemplated under Section 155(2) of the
Code.
(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufcient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/ or where there is a specifc
provision in the Code or the concerned Act, providing efcacious
redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fde and/ or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on the accused
and with a view to spite him due to private and personal
grudge."
41. Whether the FIR against the Petitioner in the present
case deserves to be quashed will have to be considered on the
touchstone of the decisions referred to hereinabove. Some of the
propositions which can be culled out and need to be considered
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in the contextual facts of the present case are thus :-
(i) It is not an absolute proposition that one must wait for
investigation to be completed before quashing FIR under Section
482 of Cr.PC as the same would depend upon the facts and
circumstances of each case. (Refer Manzar Sayyed Khan &
Bhajanlal's case.)
(ii) The intention of the accused must be judged on the
basis of the words used by the accused along with surrounding
circumstances. (Refer Manzar Sayyed Khan's case)
(iii) The statement in question on the basis of which the
FIR has been registered against the accused must be judged on
the basis of what reasonable and strong minded persons will
think of the statement, and not on the basis of the views of
hypersensitive persons who scent danger in every hostile point of
view. (Refer Manzar Sayyed Khan's case)
(iv) In order to constitute an ofence under Section 153A
of the IPC, two communities must be involved. Merely inciting
the feeling of one community or group without any reference to
any other community or group cannot attract either Section
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153A. (Refer Bilal Ahmed Kaloo's case)
(v) The intention to cause disorder or incite people to
violence is the sine qua non of the ofence under Section 153A
of IPC and prosecution has to prove prima facie the existence of
mens rea on the part of the accused. (Refer Balwant Singh's
case)
(vi) An infuential person such as "top government or
executive functionary, opposition leader, political or social leader
of following or a credible anchor on a T.V. show" carries more
credibility and has to exercise his right to free speech with more
restraint, as his/her speech will be taken more seriously than that
of a "common person on the street". (Refer Amish Devgan's
case)
(vii) A citizen or even an infuential person is under no
obligation to avoid a controversial or sensitive topic. Even
expressing an extreme opinion in a given case does not amount
to hate speech. (Refer Amish Devgan's case)
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(viii) The Apex Court has reiterated the test of imminence
in Amish Devgan's case by holding that the likelihood of harm
arising out of the accused's speech must not be remote,
conjectural or far-fetched.
42. Let us test the Petitioner's case in the light of these
principles laid down in various judgments referred hereinabove
We have gone through the Petitioner's tweet and video recording
which was reposted carefully and our observations are thus :
(a) The tweet was made on 14/04/2020 during the period of a
nationwide lockdown declared from 25/03/2020. The nation was
battling with one of the worst crisis befallen on mankind. The
pandemic had infused fear, terror, chaos and confusion in the
minds and hearts of the people. The crowd had gathered near
the Bandra railway station due to a rumour circulated that the
train services are facilitated by the government for ensuring the
safe return of the people to their respective native place. The
police machinery was faced with the responsibility of controlling
the crowd of such huge magnitude who had assembled at Bandra
Railway station and accordingly took steps to ensure that there
is no breach of law and order. The police machinery realising the
sensitivity of the situation asked a gentleman to address the
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crowd and thereby pacify them. It appears that someone made
a video recording of the crowd which had gathered and that of
the person addressing the crowd. The said video which was
created by an unknown person was reposted by the Petitioner on
her twiteer feed. While reposting the video, the Petitioner
tweeted the statement which is the subject matter of the ofence.
(b) The Petitioner is not the author of the video. She has
merely reposted it on her twitter feed. She posted a tweet
expressing her opinion thereby criticising the member in the
crowd who blamed the Prime Minister of India for the outbreak of
the pandemic. It is a matter of record that no ofence has been
registered against the author of the video which the Petitioner
reposted on her twitter feed. What we fnd is the Petitioner has
expressed her disapproval to the view point of the person in the
crowd who blamed the Prime Minister of India for the pandemic.
Learned Senior Advocate for the State wants us to read too many
things between the lines to come to the conclusion that an
ofence under Section 153A IPC is made out. The concern of the
State Police machinery to control the situation though justifed,
but the approach in registering the FIR for the comments made
on the twitter feed by the Petitioner on the apprehension that the
same may lead to promoting hatred or enmity between diferent
groups on the ground of religion or that the Petitioner has
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committed an act which is prejudicial to the maintenance of
harmony between diferent religious groups, is too far fetched
and remote. The tweet in question, if judged on the basis of
what a reasonable and strong minded person will think of it,
leaves little manner of doubt in our mind that the same is only
expressing a hostile point of view. The Respondent's approach
towards the tweet is hypersensitive and over cautious thereby
trying to scent danger in the hostile point of view expressed by
the Petitioner.
43 We also need to appreciate the surrounding
circumstances. We fnd that the video was already in circulation.
The Petitioner merely reposted the video on her twitter feed
objecting the view point of the person seen in the video. No
doubt, the Petitioner's tweets are followed by a number of
persons. However, it is difcult to form an opinion of likelihood of
harm arising from the tweet made by the Petitioner as the same
is too remote, conjectural or far-fetched. The intention on the
part of the Petitioner is obviously to counter the point of view
expressed by the person blaming the Prime Minister in the video.
The intention on the part of the Petitioner can by no stretch of
imagination be said to cause disorder or incite people to violence
which is sine qua non for the ofence under section 153A of the
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IPC. It is also not the case of the Respondents that there was
disturbance of law and order or of public order or peace and
tranquillity as a result of tweet made by the Petitioner. Though
the police machinery had ample opportunity to investigate,
nothing has been placed on record to indicate that the tweet led
to any such disturbance. The right to express one's views is a
protected and cherished right in our democracy. Merely because
the point of view of the Petitioner is extreme or harsh will not
make it a hate speech as it is only expressing a diferent point of
view. Whether the Petitioner intended to commit ofence under
Section 153A of IPC is to be collected from the internal evidence
of the words themselves, the materials on record and the facts
and circumstances of that time which needs to be taken into
account. It is material to appreciate that a large number of
persons had gathered at railway station to leave for their native
place. The police requested one gentleman to pacify the crowd.
The incident was recorded by some one on video and one person
in the crowd shouted that Covid - 19 pandemic is not an act of
God but has been brought out by Prime Minister of India. The
Petitioner's objection was to this point of view. Merely because a
reference is made to Bandra Masjid location in the tweet by the
Petitioner would not attract the provisions of Section 153A of IPC.
The prime intent of the Petitioner is obviously to criticize and
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counter the view point of the person in the video who was
blaming the Prime Minister of India for the spread of virus. No
ofence has been registered against the author of the video or
the person blaming the Hon'ble Prime Minister. There is no
disturbance reported immediately after the tweet is posted or
even during the course of investigation as a result of the tweet.
44. We do fnd force in the submission of learned Senior
Advocate Shri Mohite for the State that the police machinery
was faced with the responsibility of controlling a crowd of such
huge magnitude which had assembled at the Bandra Railway
Station pursuant to a rumour that the train services are
facilitated by the Government to ensure safe return of all
concerned to their native place. The pandemic had started
wreaking havoc. Migrants were anxious to go back to their
native place as all hell had broken loose due to the pandemic.
The people were restless, anxious and in panic. Accordingly the
police requested a gentleman in the crowd to pacify them. The
police machinery proceeded in the correct direction trying to
control & pacify the crowd. It was their responsibility to control
the situation and ensure maintenance of law and order. Keeping
a check on the posts made on the social media platform to
ensure the situation does not go out of hand was one such
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measure. The video and post in question was noticed with some
degree of promptitude. Apprehending that the post may have
the efect a deteriorating law & order situation, the FIR was
registered against the Petitioner under Section 153A of IPC.
45. Assuming that the said tweet is an extreme view
expressed in retaliation to the view expressed by one of the
member of the crowd who was blaming the Prime Minister of
India for the outbreak of the pandemic, the said tweet has still to
be judged from the standpoint of what the reaction of a strong
minded, reasonable or a prudent person would be. It is material
to note that reading of the contents of the tweet would reveal
that neither any community nor any religion is named. Nothing
substantial has been brought on record by the prosecution to
hold that because of the said tweet, hatred or enmity was
created in between two communities. If the test of a strong or a
prudent person judging the contents of the said tweet is applied,
by no stretch of imagination it can be said that the said tweet
created hatred or enmity between the two groups of
communities. Upon reading of the contents of the said tweet, it
is difcult to arrive at the conclusion that the Petitioner has mens
rea to commit alleged ofence under section 153A of the IPC.
wpst 4732.20.doc
46. We do appreciate the eforts on the part of the police
machinery in taking appropriate steps in pacifying the crowd and
keeping a close vigil on the social media platform to ensure that
the situation does not go out of hand as a result of objectionable
videos or posts, however, the action of registering the instant
FIR, even if all the materials are taken at their face value and
accepted do not prima facie constitute any ofence or make out a
case against the Petitioner.
47. Having given our careful and in-depth consideration,
we fnd this is ft case to quash the FIR fled against the
Petitioner. The Petition therefore succeeds and is accordingly
allowed in terms of prayer clause (a) which reads thus :
(a) Issue appropriate Writ, Order or Direction, thereby calling
for the records and proceedings of FIR No. 97 of 2020 dated
15.04.2020 registered with Azad Maidan Police Station,
Mumbai for ofences punishable u/s 153A of the IPC and for
that purpose issue necessary orders and after going through
the contents of the aforesaid FIR be pleased to quash and set
aside the aforesaid FIR."
48. Rule is made absolute in the above terms. The Writ
Petition stands disposed of accordingly.
(M.S.KARNIK, J. ) (S.S.SHINDE, J.)
