Gujarat High Court
Niravbhai Bhagvanbhai Chaudhry vs State Of Gujarat on 2 July, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO.5217 of 2025
With
R/CRIMINAL MISC. APPLICATION NO.5221 of 2025
With
R/CRIMINAL MISC. APPLICATION NO.5337 of 2025
With
R/CRIMINAL MISC. APPLICATION NO.5338 of 2025
With
R/CRIMINAL MISC. APPLICATION NO.5388 of 2025
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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Approved for Reporting Yes No
YES
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NIRAVBHAI BHAGVANBHAI CHAUDHRY
Versus
STATE OF GUJARAT & ANR.
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Appearance :
MR RB THAKOR for the Applicant.
MR HARDIK MEHTA, APP for the Respondents.
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 02/07/2025
COMMON ORAL JUDGMENT
1. Rule. Learned Additional Public Prosecutor waives
service of rule on behalf of respondents. Since the issue involved
in the present petition is squarely covered by the decision of the
coordinate Bench delivered on 20.8.2024 in Criminal Misc.
Application No.11013 of 2020 and allied matters, the present group
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of petitions are taken up for final disposal today itself.
2. By way of these petitions, the applicants have prayed
for quashing of the different FIRs, details of which are given in a
Tabular form as under :-
Petition No. FIR No. Police Offence
Station
Criminal Misc.11200010201748 of Valsad Town 505(1)(b) and
Application 2020 Police 120-B of the
No.5217 of 2025 Station Indian Penal
Code, Section 54
of the Disaster
Management
Act and Section
3 of the Police
(Incitement to
Disaffection)
Act, 1922
Criminal Misc.11219002200780 of Ahwa Police 505(1)(b) and
Application 2020 Station, Dist. 120-B of the
No.5221 of 2025 Dang Indian Penal
Code, Section 54
of the Disaster
Management
Act and Section
3 of the Police
(Incitement to
Disaffection)
Act, 1922
Criminal Misc.11214023201364 ofKadodara 505(1)(b) and
Application G.I.D.C. 120-B of the
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No.5337 of 2025 2020 Police Indian Penal
Station, Dist. Code, Section 54
Surat. of the Disaster
Management
Act and Section
3 of the Police
(Incitement to
Disaffection)
Act, 1922
Criminal Misc.11822021202449 ofNavsari 505(1)(b) and
Application 2020 Rural Police 120-B of the
No.5338 of 2025 Station, Dist. Indian Penal
Navsari Code, Section 54
of the Disaster
Management
Act and Section
3 of the Police
(Incitement to
Disaffection)
Act, 1922
Criminal Misc.11824001201061 ofVyara Police 505(1)(b) and
Application 2020 Station, Dist. 120-B of the
No.5388 of 2025 Tapi Indian Penal
Code, Section 54
of the Disaster
Management
Act and Section
3 of the Police
(Incitement to
Disaffection)
Act, 1922
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3. Criminal Misc. Application No.5217 of 2025 was taken
up as lead matter and the facts are stated from the said matter.
4. It is the case of the prosecution that the complainant
was made a member by some admin of the group having group
named "2800police_SRPF_Districtwise" without his knowledge on
18.7.2020 and when the complainant checked the account on
22.7.2020, the said group was deleted and in the said group,
different issues were raised i.e. "our demands" like other
departments grade pay for Police Constable-2800, ASI 4200, fix the
duty hours, Grade Pay is our right, Is Police Union can't be made
out" If IPS can make their group then why not DySP, PI, PSI, ASI
and Constable and according to him, the above posts were illegal
and punishable under the law and, therefore, upon checking details
of the group admin, he found that the link was forwarded through
www.kapsnet.in. Upon checking the details on the said website, it
was found that different posts regarding grade pay of police were
there and, therefore, gathering all these information, the FIR was
registered. Other FIRs were also registered on the same line.
5. Mr. R. B. Thakore, learned advocate appearing for the
applicant in all these petitions submitted that the issue raised in
the present petitions is squarely covered by the decision of the
coordinate Bench of this Court rendered in the case of Kalpesh
Vaghabhai Chaudhary v. State of Gujarat and another,
Criminal Misc. Application No.11013 of 2020 and allied
matters decided on 20.8.2024 where in similar set of facts and
having similar kind of FIRs, the coordinate Bench has allowed
those petitions and quashed the FIRs as well as consequential
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proceedings arising out of the said FIRs in respect of each
applicants of the said group of matters. He, therefore, submitted
that the present group of matters are also having similar set of
facts and, therefore, the above referred decision squarely applies to
the facts of the present case and hence, the present petitions may
be allowed.
6. Mr. Thakore further submitted that the above referred
decision dated 20.8.2024 was never carried in appeal and the same
has become final and, therefore, the applicants herein are required
to be treated identically as there is no difference in the language of
the FIR and the tone and tenor of the FIRs which are under
challenge and the FIRs which have been quashed and set aside by
the coordinate Bench is same and, therefore, the present petitions
may be allowed.
6. Mr. Hardik Mehta, learned Additional Public
Prosecutor, upon instructions, could not dispute the fact that the
facts of the present group of petitions are almost identical to the
facts of the group of petitions which were allowed by the
coordinate Bench of this Court vide decision dated 20.8.2024. He,
therefore, submitted that appropriate order be passed.
7. I have heard learned advocates appearing for the
respective parties and perused the record. While considering the
submissions in similar set of facts, the coordinate Bench of this
Court in the case of Kalpesh Vaghabhai Chaudhary v. State of
Gujarat and another, Criminal Misc. Application No.11013 of
2020 and allied matters decided on 20.8.2024 has observed in
paragraphs 3 to 13 as under :-
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"3. The impugned FIRs are filed at the instance
of police officials alleging therein that the accused
persons by hatching criminal conspiracy made the
complainant a member by some admin of the group
namely "2800police_SRPF_Districtwise" (hereinafter
referred to as "said group") without the knowledge
of the complainant on 18.07.2020 and when the
complainant checked the account on 22.07.2020,
the account was deleted. It is further alleged that in
the said group, different issues as mentioned in the
FIRs were raised. Pursuant to the same, the
complainant verified the admin of the said group
and other details and found that the said link was
forwarded through www.kapsnet.in. Further, details
of the website were checked and different posts
regarding grade pay of police were found. In this
regard, the FIRs came to be filed.
4. Heard learned advocate for the petitioner and
learned APP for respondent No.1 - State of Gujarat.
5. Learned advocate for the petitioner has
submitted that petitioner is innocent and has been
falsely enroped in the present offence and he has
nothing whatsoever to do with the alleged offence.
Further, recently the primary teachers have made
huge movement and protest against the government
through different social platforms like twitter,
whatsapp, facebook, instagram etc. and at last
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government was ready to give them grade pay of
Rs.4200/-. He has further submitted that just to
express the views by way of creating group or by
circulating the rights of the police is not an offence.
Further, after the movement of the teachers for the
grade pay of Rs.4200/-, police constables also
became hopeful and have started the movement for
grade pay of Rs.2800/- and circulated the agenda of
said demand by way of keeping status as
"police2800", which fact came to the knowledge of
the government and Director General of Police, who
by way of notification dated 20.07.2020 announced
that whoever made groups and are circulating such
posts will be punished and complaint would be
registered. It is submitted that the present
petitioner has not posted any thing in the form of
threat or creating any panic situation in the COVID-
19 pandemic period and the FIR is nothing but an
attempt to suppress the voice of the public.
5.1 He has further submitted that police have
registered many FIRs for one and the same accused
- petitioner for the same set of acts and the contents
of different FIRs are also same and it is settled law
that for same set of acts different FIRs cannot be
registered. Further, many MLAs have written to the
government regarding grant of several service
benefits to the police constables and also demanded
their rights, which was circulated by the present
petitioner and no any other posts have been made
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by the petitioner which can create panic situation.
He has further submitted that even TV media has
also broadcast current situation of police constables
and therefore, even if it is assumed without
admitting that petitioner has done any act then also
it was nothing but expression of his views for the
rights of police constable, which is a fundamental
right of an individual being the citizen of this
country. Further, freedom of speech and expression
is enshrined under Article 19(1)(a) of the
Constitution of India and therefore, the petitioner
has not committed any offence as alleged. Hence, he
has requested to allow the present petitions.
6. Learned Public Prosecutor Mr. Hardik Dave
assisted by learned Additional Public Prosecutor Mr.
H.K. Patel has vehemently opposed the present
petitions and submitted that the present petitioners
have committed the breach of public tranquility and
fear in the minds of general public during the
COVID-19 pandemic period. Further, he has
submitted that present petitioners have nothing to
do with the grade pay or police union though they
have formed the group and generated one link and
tried to form an association and tried to create a
separate class to cause alarm in general public due
to which law and order situation was put under peril
and petitioners have incited likely to commit the
offence. Considering the aforesaid fact, prima facie,
offence under Section 505(1)(B) of the IPC is made
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out and for that actual commission of offence is not
required.
6.1 Further, he has submitted that even in many
cases investigation is going on and prima facie
involvement of the petitioners is made out. Further,
petitioners are not denying that they had formed the
group and though police personnel were not
interested in raising their grievance or voice against
the government, the petitioners have created the
said group and without their permission, petitioners
have added 33000 of police personnel in the group
and tried to create alarming situation against the
government without any authority under various
political agenda. No police officer or any other
person has ever raised any demand qua their grade
pay. Hence, as the petitioners have formed the
group without the consent of complainant and other
police constables, complaints have been filed by
police constables in their individual capacity.
6.2 Further, he has relied on the decision of the
Hon'ble Supreme Court in the case of Kedar Nath
Singh vs. State of Bihar reported in 1962 SCC
OnLine SC 6 and submitted that merely preparation
and likely cause of any offence or breach of public
tranquility itself is an offence and preparation itself
is an offence and constitutional validity of section
505(1)(B) of the IPC is upheld by the Hon'ble
Supreme Court. Hence, he has requested to dismiss
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the present petitions.
7. Having heard learned advocates for the
respective parties and going through the record it
appears that the allegations leveled against the
petitioners is that the present petitioner is one of
the members of Telegram
viz."2800police_SRPF_Districtwise" wherein about
1300 police constables were added as group
members of by the petitioner and he has posted
various posts regarding demand of higher grade pay
of Rs.2800/- for police constable and other service
benefits required to be paid to the police constables.
Further, it is the case of the petitioner that the
petitioner has not created any group or he has not
added any member in the said group as the
petitioner was not knowing all the police personnel
but police personnel themselves by way of clicking
the link became the member of the said group. As
none of the police personnel is added by the present
petitioner, question does not arise to create group
or form any union or association on behalf of the
police personnel.
7.1 The second limb of argument of learned
advocate is that the petitioner is not having any
personal interest and no any malafide intention
behind creating such group unlike other
government employee right of police constable and
in peaceful manner without any intention to breach
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the public peace or causing any alarming situation
against the government. The petitioner has sent the
message and he has expressed his fair opinion and
subsequently government has also accepted the said
legitimate demand pursuant to various complaints
and representations made by various leaders and
MLAs and then subsequently the Director General of
Police issued the circular directing the subordinate
police officials not to join any group and prior to
that there was no any retraction. At the relevant
point of time, other government officials including
the primary teachers also had raised a grievance
against the grade pay and government employees
having right to ask for their legitimate right and
increment in salary. Hence, there was no any
malafide intention and in this regard, on the same
set of facts, five different FIRs have been filed in
different districts.
7.2 Perusing the tenor of the allegations made in
the FIRs, it appears that the FIRs are filed for the
offence under Section 505(1)(B) read with Section
120(B) of the IPC and section 54 of the Disaster
Management Act and section 3 of the Police
(Incitement to Disaffection) Act, 1922. To invoke the
provisions of offence under Section 120(B) of the
IPC, more than two persons are required and
knowledge of meeting of minds is important.
7.3 Further, it is pertinent to note that, in order
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to invoke charges of criminal conspiracy under
section 120 of the IPC, the first ingredient is
agreement between two or more persons. This
agreement is the crux of the offence and can be
explicit or implicit, written or oral. The second
essential component is the intention to commit an
illegal act or a legal act by illegal means. The intent
should be directly related to the outcome that the
conspirators plan to achieve. The essential
ingredients of criminal conspiracy are: (i) An
agreement between two or more persons; (ii) The
agreement must be related to doing or causing to be
done either (a) an illegal act and (b) an act that is
not illegal in itself but is done by illegal means; (iii)
The agreement may be expressed or implied or
partly expressed and partly implied; (iv) As soon as
the agreement is made, the conspiracy arises, and
the offence is committed and (v) the same offence is
continued to be committed so long as the
combination persists.
7.4 Herein, it is an admitted fact that there is no
any evidence or communication which reveals
meeting of minds of three accused i.e. present
petitioners as they are unknown to each other and
from different places. Nonetheless, merely to form a
group and subsequently to join the said group by
clicking the link or by any other means by the police
personnel which were also admittedly unknown to
the present petitioners and merely for volunteering
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themselves to join as member of the said group
cannot be termed as conspiracy and it is sine qua
non to conspire. There must be an agreement
between two persons to act or omit to do any illegal
act. Herein, if we accept the allegations as it is, even
though demand for the police personnel or on behalf
of police personnel or government servant was a
legitimate demand qua enhancement of the grade
pay and other ancillary service benefits and cannot
in any manner be termed as illegal demand as it was
collective duty of employees and to raise any
genuine or grievance or to ask for any right against
employer cannot be termed as illegal demand.
Hence, question does not arise to invoke the
provisions of section 120(B) of the IPC against the
present petitioners.
8. Now, coming back to the facts of the case, in
support of contention as regards invocation of
provision of offence under Section 505(1)(B) of the
IPC, learned Public Prosecutor Mr. Dave has relied
on the decision of Hon'ble Supreme Court in the
case of Kedar Nath Singh (Supra) and submitted
that act must be such that it must be intended to
cause fear or alarm to public whereby any person
may be induced to commit an offence against the
State or against public tranquility. Herein, no any
act or any allegation in the FIRs which discloses or
suggests that the petitioner intended to cause fear
or alarm to the public at large. Further, tendency to
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induce any person to commit the offence against the
State or disrupt public tranquility. In the case of
Kedar Nath Singh (Supra), Hon'ble Apex Court has
been pleased to observe in paragraph 29 which
reads as under :-
"29. It is only necessary to add a few observations
with respect to the constitutionality of Section 505
of the Indian Penal Code. With reference to each of
the three clauses of the section, it will be found that
the gravamen of the offence is making, publishing or
circulating any statement, rumour or report (a) with
intent to cause or which is likely to cause any
member of the Army, Navy or Air Force to mutiny or
otherwise disregard or fail in his duty as such; or (b)
to cause fear or alarm to the public or a section of
the public which may induce the commission of an
offence against the State or against public
tranquillity; or (c) to incite or which is likely to incite
one class or community of persons to commit an
offence against any other class or community. It is
manifest that each one of the constituent elements
of the offence under s. 505 has reference to, and a
direct effect on, the security of the State or public
order. Hence, these provisions would not exceed the
bounds of reasonable restrictions on the right of
freedom of speech and expression. It is clear,
therefore, that cl. (2) of Art. 19 clearly save the
section from the vice of unconstitutionality."
A plain reading of the aforesaid observations
suggests that to establish essential ingredients of
the offence under Section 505 of the IPC, the act
must have the direct effect on the security of the
State or public order. In the present case, the said
essential element is missing and not found. The
essential ingredients of Section 505 of the IPC are
as under :-
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(i) That the accused made (published or circulated)
any statement, rumour or alarming news;
(ii) That the accused did so with intent to,
(a) Create or promote (or which he knew it likely to
create or promote) any member of the Army, Navy
or Air Force to mutiny or otherwise disregard or fail
in his duty as such;
(b) Cause fear or alarm to the public or a section of
the public which may induce the commission of an
offence against the State or against public
tranquility;
(c) To incite (or which is likely to incite) one class or
community of persons to commit an offence against
any other class or community."
In backdrop of aforesaid fact, "to cause or likely to
cause fear or alarm to the general public" or a
particular section of people whereby any person
may be convinced to commit an offence against the
State or against the public tranquility must be
proved.
8.1 Herein, neither the police personnel nor any
other government employee have committed any
offence against the State or public tranquility.
Merely based on apprehension or assumption, the
petitioners cannot be booked for an offence under
Section 505(1)(B) of the IPC. Even exception to
section 505(1) of the IPC reads as under :-
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"Exception.- It does not amount to an offence, within
the meaning of this section, when the person
making, publishing or circulating any such
statement, rumour or report, has reasonable
grounds for believing that such statement, rumour
or report is true and makes, publishes or circulates
it in good faith and without any such intent as
aforesaid."
Perusing the aforesaid exception also, section 505 of
the IPC states that if a person makes, publishes or
circulates any statement, rumour or report with
some reasonable ground for believing that such
statement, report or rumour is true and makes,
publishes or circulates it in good faith and without
any malice or intention then it is not an offence
under this section. The term "good faith" is defined
under section 52 of the IPC and under this
provision, only due care and attention are required
to constitute "good faith". Herein, bare reading of
the FIR or evidence does not suggest any malice or
intention on the part of the present petitioners and
merely to form a group or to post any message qua
legitimate demands of grade pay or any issue
related to service would not implicate the present
petitioners under Section 505(1)(B) of the IPC.
Even, in absence of any malafide or malice on the
part of the petitioners, no offence is made out under
Section 505(1)(B) of the IPC. Even if, for the sake of
argument it is assumed that there was a chance of
breach of public tranquility or any commission of
offence, even in that event also, police had ample
power to take appropriate recourse or preventive
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measures under Section 107 of the CrPC. Even, this
is not a case wherein there is possibility of
commission of cognizable offence.
8.2 Even, it is not a case of the prosecution that,
there was a rumour spread by petitioners and there
was an act on the part of the petitioners so to create
fear or alarm between two group or class of people.
Merely because police officials are involved in the
group is not a ground that, there was a possibility to
create class of two group of people. It is also
pertinent to note that police officers will never lose
their status of government servant unlike the
primary teachers and other government employees
who had made a demand of grade pay. They were
also intending to get their legal right and grade pay.
Subsequently, considering various representations
of MLAs and various government employees, unions,
State has also increased the grade pay and extended
the benefit to police officials also. Hence, question
does not arise that said message has spread as a
rumour and said act is also justifying that the
demand made in messages was genuine one.
Considering the aforesaid fact, the act on the part of
the petitioners even if taken at it is it is nothing but
amounts to fair and bonafide demand or criticism of
government. Except this, no any inference could be
drawn hence, no any offence is culled out from the
allegations leveled in the FIRs.
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9. Even, going through the un-controverted
facts and allegations leveled in the FIR does not
establish any essential ingredients of the offence
under Section 505(1) (B) of the IPC and to constitute
an offence, there must be four suggestions viz. (1)
intention; (2) preparation; (3) attempt and (4)
accomplishment. Barring few offences under the
IPC, merely preparation is not an offence. In normal
circumstances, intervening only at the third and
fourth stage, no any offence is made out. Herein,
message is also sent and subsequently volunteering
police personnel had abetted to join the said group.
There was no compulsion on the part of the
petitioners to join the group and even the
complainant had an option if there was no
compulsion or force to join the group. If complainant
did not want to join the said group, he could have
abstained himself from joining the said group.
Hence, no any offence is made out under Section
505(1)(B) of the IPC. The effect of the words must
be judged from the standards of reasonable, strong-
minded, firm and courageous men, and not those of
weak and vacillating minds, nor of those who scent
danger in every hostile point of view. Merely
because message is spread, it cannot be termed that
due to the said message, public tranquility is put in
the peril and create fear in the minds of people and
that too such police personnel having strong mind
and being employee of disciplined department.
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10. Further, for one offence, five different FIRs
have been filed which itself is nothing but amounts
to abuse of process of law and such FIRs are
required to be clubbed. In this regard, reference is
required to be made to the decision of Hon'ble
Supreme Court in the case of Arnab Ranjan
Goswami vs. Union of India reported in (2020)
14 SCC 12 and in the case of N.V. Sharma vs.
Union of India reported in 2022 SCC OnLine
(SC) 1003 wherein it has been held that no
subsequent FIR in respect of the same or connected
cognizable offence or occurrence or incident is
permissible. Herein, on the same ground, five FIRs
are registered. Herein, as discussed above, no
offence is made out.
10.1 Further, in the FIRs, the allegations for the
offence under Section 3 of the Police (Incitement to
Disaffection) Act, 1922 is also leveled against the
petitioners in the FIR. Section 3 of the said Act
reads as under :-
"3. Penalty for causing disaffection, etc.- Whoever
intentionally causes or attempts to cause, or does
any act which he knows is likely to cause
disaffection towards the Government established by
law in India amongst the members of a Police Force,
or induces or attempts to induce, or does any act
which he knows is likely to induce any member of a
police force to withhold his service or to commit a
breach of discipline shall be punished with
imprisonment which may extend to six months or
with fine which may extend to two hundred rupees,
or with both."
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Upon bare perusal of the aforesaid provision it is
clear that mere intention to form an association of a
member of police force would not attract any
penalty under Section 3 of the Police (Incitement to
Disaffection) Act, 1922. In this regard, reference is
required to be made to the decision of the Hon'ble
Supreme Court in the case of N. Sengodan vs.
State of Tamil Nadu reported in (2013) 8 SCC
664. Herein, in the case on hand also perusing
various representations and applications of MLAs
and different employee unions, subsequently benefit
is extended to the police personnel and circular is
also issued by the DGP not to form any group,
association or be active on social media. In the case
of N. Sengodan (Supra), the Hon'ble Supreme Court
has observed and held that, the statement or
message is not likely to incite the police personnel.
Even, if the allegation leveled against the petitioners
is accepted even though it amounts to calling upon
the police officials fight for their rights which cannot
be termed as aforesaid incitement under section 3 of
the Police (Incitement to Disaffection) Act, 1922.
Merely because the petitioners without any consent
have floated any self-styled message is not a ground
to book the petitioners for the offence under Section
505(1)(B) of the IPC.
10.2 As discussed above, petitioners have not
committed any offence under Section 505(1)(B) of
the IPC as it was a fair and bonafide attempt and
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legitimate demand and subsequently government
has also accepted the same and hence, it was not a
rumour. Merely to express any opinion or to
exercise the fundamental right or to make any
criticism under Article 19(1)(a) of the Constitution
of India is not an offence. Going by the allegations
made in the FIRs and other attending
circumstances, no offence is made out against the
present petitioners.
10.3 Further, the Hon'ble Apex Court in the case
of Vinod Dua vs. Union of India and others
reported in 2021 SCC OnLine (SC) 414
elaborately discussing the scope of fundamental
right enshrined under Article 19(1)(a) of the
Constitution of India has explained the word "public
order" and observed as under in paragraph No.35 :-
"35. Reliance was also placed on the decision of the
Constitution Bench of this Court in The
Superintendent, Central Prison, Fatehgarh and
another v. Dr. Ram Manohar Lohia [AIR 1960 SC
633], which dealt with the expression "Public Order"
appearing in Article 19 (2) of the Constitution, the
relevant portion being :-
"9. ...... The expression "public order" has a very
wide connotation. Order is the basic need in any
organised society. It implies the orderly state of
society or community in which citizens can
peacefully pursue their normal activities of life. In
the words of an eminent Judge of the Supreme
Court of America "the essential rights are subject to
the elementary need for order without which the
guarantee of those rights would be a mockery". The
expression has not been defined in the Constitution,
but it occurs in List II of its Seventh Schedule and is
also inserted by the Constitution (First Amendment)
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Act, 1951 in clause (2) of Article 19. The sense in
which it is used in Article 19 can only be
appreciated by ascertaining how the Article was
construed before it was inserted therein and what
was the defect to remedy which the Parliament
inserted the same by the said amendment. The
impact of clause (2) of Article 19 on Article 19(1)(a)
before the said amendment was subject to judicial
scrutiny by this Court in Romesh Thappar v. State of
Madras [1950 SCR 594]. There the Government of
Madras, in exercise of their powers under Section
9(1-A) of the Madras Maintenance of Public Order
Act, 1949, purported to issue an order whereby they
imposed a ban upon the entry and circulation of the
journal called the "Cross Roads" in that State. The
petitioner therein contended that the said order
contravened his fundamental right to freedom of
speech and expression. At the time when that order
was issued the expression "public order" was not in
Article 19(2) of the Constitution; but the words "the
security of the State" were there. In considering
whether the impugned Act was made in the
interests of security of the State, Patanjali Sastri, J.,
as he then was, after citing the observation of
Stephen in his Criminal Law of England, states :-
"Though all these offences thus involve disturbances
of public tranquillity and are in theory offences
against public order, the difference between them
being only a difference of degree, yet for the
purpose of grading the punishment to be inflicted in
respect of them they may be classified into different
minor categories as has been done by the Indian
Penal Code. Similarly, the Constitution, in
formulating the varying criteria for permissible
legislation imposing restrictions on the fundamental
rights enumerated in Article 19(1), has placed in a
distinct category those offences against public order
which aim at undermining the security of the State
or overthrowing it, and made their prevention the
sole justification for legislative abridgement of
freedom of speech and expression, that is to say,
nothing less than endangering the foundations of
the State or threatening its overthrow could justify
curtailment of the rights to freedom of speech and
expression ...."
The learned Judge continued to state :-
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"The Constitution thus requires a line to be drawn in
the field of public order or tranquility marking off,
may be, roughly, the boundary between those
serious and aggravated forms of public disorder
which are calculated to endanger the security of the
State and the relatively minor breaches of the peace
of a purely local significance, treating for this
purpose differences in degree as if they were
differences in kind."
The learned Judge proceeded further to state :-
"We are therefore of opinion that unless a law
restricting freedom of speech and expression is
directed solely against the undermining of the
security of the State or the overthrow of it, such law
cannot fall within the reservation under clause (2) of
Article 19, although the restrictions which it seeks
to impose may have been conceived generally in the
interests of public order."
This decision establishes two propositions viz. (i)
maintenance of public order is equated with
maintenance of public tranquillity; and (ii) the
offences against public order are divided into two
categories viz. (a) major offences affecting the
security of the State, and (b) minor offences
involving breach of purely local significance. This
Court in Brij Bhushan v. State of Delhi [AIR 1950 SC
129 : 1950 SCR 605] followed the earlier decision in
the context of Section 7(1)(c) of the East Punjab
Public Safety Act, 1949. Fazl Ali, J., in his dissenting
judgment gave the expression "public order" a
wider meaning than that given by the majority view.
The learned Judge observed at p. 612 thus :-
"When we approach the matter in this way, we find
that while 'public disorder' is wide enough to cover
a small riot or an affray and other cases where
peace is disturbed by, or affects, a small group of
persons, 'public unsafety' (or insecurity of the
State), will usually be connected with serious
internal disorders and such disturbances of public
tranquillity as jeopardize the security of the State."
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This observation also indicates that "public order" is
equated with public peace and safety. Presumably in
an attempt to get over the effect of these two
decisions, the expression "public order" was
inserted in Article 19(2) of the Constitution by the
Constitution (First Amendment) Act, 1951, with a
view to bring in offences involving breach of purely
local significance within the scope of permissible
restrictions under clause (2) of Article 19. After the
said amendment, this Court explained the scope of
Romesh Thapper's case20 in State of Bihar v.
Shailabala Devi [(1952) SCR 654]. That case was
concerned with the constitutional validity of Section
4(1)(a) of the Indian Press (Emergency Powers) Act,
1931. It deals with the words or signs or visible
representations which incite to or encourage, or
tend to incite to or encourage the commission of any
offence of murder or any cognizable offence
involving violence. Mahajan, J., as he then was,
observed at p. 660
"The deduction that a person would be free to incite
to murder or other cognizable offence through the
press with impunity drawn from our decision in
Romesh Thapper case could easily have been
avoided as it was avoided by Shearer, J., who in very
emphatic terms said as follows :
'I have read and re-read the judgments of the
Supreme Court, and I can find nothing in them
myself which bear directly on the point at issue, and
leads me to think that, in their opinion, a restriction
of this kind is no longer permissible.
The validity of that section came up for
consideration after the Constitution (First
Amendment) Act, 1951, which was expressly made
retrospective, and therefore the said section clearly
fell within the ambit of the words "in the interest of
public order". That apart the observations of
Mahajan, J., as he then was, indicate that even
without the amendment that section would have
been good inasmuch as it aimed to prevent
incitement to murder.
10. The words "public order" were also understood
in America and England as offences against public
safety or public peace. The Supreme Court of
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America observed in Cantewell v. Connecticut
[(1940) 310 US 296, 308] thus:
"The offence known as breach of the peace
embraces a great variety of conduct destroying or
menacing public order and tranquillity. It includes
not only violent acts and words likely to produce
violence in others. No one would have the hardihood
to suggest that the principle of freedom of speech
sanctions incitement to riot ...When clear and
present danger of riot, disorder, interference with
traffic upon the public streets, or other immediate
threat to public safety, peace, or order appears, the
power of the State to prevent or punish is obvious."
The American decisions sanctioned a variety of
restrictions on the freedom of speech in the
interests of public order. They cover the entire
gamut of restrictions that can be imposed under
different heads in Article 19(2) of our Constitution.
The following summary of some of the cases of the
Supreme Court of America given in a well-known
book on Constitutional law illustrates the range of
categories of cases covering that expression. "In the
interests of public order, the State may prohibit and
punish the causing of 'loud and raucous noise' in
streets and public places by means of sound
amplifying instruments, regulate the hours and
place of public discussion, and the use of the public
streets for the purpose of exercising freedom of
speech; provide for the expulsion of hecklers from
meetings and assemblies, punish utterances tending
to incite an immediate breach of the peace or riot as
distinguished from utterances causing mere 'public
inconvenience, annoyance or unrest'. In England
also Acts like Public Order Act, 1936, Theatres Act,
1843 were passed: the former making it an offence
to use threatening, abusive or insulting words or
behaviour in any public place or at any public
meeting with intent to provoke a breach of the
peace or whereby a breach of the peace is likely to
be caused, and the latter was enacted to authorise
the Lord Chamberlain to prohibit any stage play
whenever he thought its public performance would
militate against good manners, decorum and the
preservation of the public peace. The reason
underlying all the decisions is that if the freedom of
speech was not restricted in the manner the
relevant Acts did, public safety and tranquillity in
the State would be affected.
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11. But in India under Article 19(2) this wide
concept of "public order" is split up under different
heads. It enables the imposition of reasonable
restrictions on the exercise of the right to freedom
of speech and expression in the interests of the
security of the State, friendly relations with foreign
States, public order, decency or morality, or in
relation to contempt of court, defamation or
incitement to an offence. All the grounds mentioned
therein can be brought under the general head
"public order" in its most comprehensive sense. But
the juxtaposition of the different grounds indicates
that, though sometimes they tend to overlap, they
must be ordinarily intended to exclude each other.
"Public order" is therefore something which is
demarcated from the others. In that limited sense,
particularly in view of the history of the amendment,
it can be postulated that "public order" is
synonymous with public peace, safety and
tranquillity." (Emphasis supplied)"
11. Insofar as offence under Section 54 of the
Disaster Management Act is concerned, provision of
section 54 reads as under :-
"54. Punishment for false warning.- Whoever makes
or circulates a false alarm or warning as to disaster
or its severity or magnitude, leading to panic, shall
on conviction, be punishable with imprisonment
which may extend to one year or with fine."
Herein, as discussed in earlier part, petitioners have
not circulated any false alarm or warning qua
disaster or its severity or magnitude, leading to
panic and due to such alleged message, no panic or
rumour has been spread by the petitioners. Even
otherwise, to invoke the provision of section 54 of
the Disaster Management Act, the compliance of
section 195(1)(a) of the CrPC is mandatory and
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complaint is required to be filed by the superior
public servant under the statutory requirement. The
Hon'ble Supreme Court in the case of Vinod Dua
(Supra) considering the decision in the case of
Kedar Nath Singh (Supra) has observed in
paragraph No.51(B) as follows :-
"Section 52 of the DM Act deals with the lodging of
a false claim by a person for obtaining any relief,
assistance, etc., which provision has nothing to do
with the present fact situation. Section 54 deals with
cases where a person makes or circulates a false
alarm or warning as to disaster or its severity or
magnitude, leading to panic. We have already held
that the statements made by the petitioner were
within the limits prescribed by the decision of this
Court in Kedar Nath Singh and that the statements
were without any intent to incite people for creating
public disorder. It was not even suggested that as a
result of statements made by the petitioner any
situation of panic had resulted in any part of the
country."
Hence, offence under Section 54 of the Disaster
Management Act is also not made out.
12. Further, it is necessary to consider whether
the power conferred by the High Court under
section 482 of the Code of Criminal Procedure is
warranted. It is true that the powers under Section
482 of the Code are very wide and the very
plenitude of the power requires great caution in its
exercise. In the case of Bhajan Lal (Supra), the
Apex Court has set out the categories of cases in
which the inherent power under Section 482 CrPC
can be exercised and held as under :-
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"(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 sufficient
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 specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide 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."
Even if the uncontroverted allegations in the FIRs
are perused, offences as alleged are not made out.
In this regard, reference is required to be made to
the decision of the Hon'ble Supreme Court in the
case of Patricia Mukhim vs. State of Meghalaya
and Others reported in (2021) 15 SCC 35
wherein it is held that even if the allegations made
in the FIR or complaint are taken on their face value
and accepted in their entirety, same do not prima
facie constitute any offence or make out a case
against the accused and the FIR is liable to be
quashed.
12.1 Considering the aforesaid proposition in
consonance with the facts of the case on hand, to
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continue such proceeding against the present
petitioners would be abuse of process of law and
hence, present is a fit case to exercise powers under
Section 482 of the CrPC.
13. In wake of aforesaid discussion, present
petitions are allowed. Impugned FIRs being CR Nos.
(1) 11822021202449/2020 registered with Navsari
Rural Police Station, Navsari; (2)
11200010201748/2020 registered with Valsad Town
Police Station, Valsad; (3) 11214023201364/2020
registered with Kadodara GIDC,
Surat Rural; (4) 11824001201061/2020 registered
with Vyara Police Station, Tapi and (5)
11219002200780/2020 registered with Aahva Police
Station, Dang alongwith all its consequential
proceedings are hereby quashed and set aside qua
the respective petitioners viz. (1) Kalpesh Vaghabhai
Chaudhary, (2) Vadher Rajesh Hamir and (3) Kapil
Bhagvanbhai Desai only. Rule is made absolute to
the aforesaid extent only. Direct service is
permitted."
8. As the facts of the present set of petitions are almost
identical in nature and as nothing could be pointed out to
differentiate that the applicants stand on different footing except
the fact that the applicants against whom FIRs were quashed by
the coordinate Bench were not belonging to Police force and the
applicants herein belong to Police force and, therefore, the
observations referred to above made by coordinate Bench are
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squarely applicable in the facts of the present cases as well.
9. Accordingly, the present petitions stand allowed.
Impugned FIRs being (i) FIR No.11200010201748 of 2020
registered with Valsad Town Police Station, (ii) FIR
No.11219002200780 of 2020 registered with Ahwa Police Station,
Dist. Dang, (iii) FIR No.11214023201364 of 2020 registered with
Kadodara G.I.D.C. Police Station, Dist. Surat, (iv) FIR
No.11822021202449 of 2020 registered with Navsari Rural Police
Station, Dist. Navsari and (v) FIR No.11824001201061 of 2020
registered with Vyara Police Station, Dist. Tapi are quashed and set
aside qua applicant of each petitions. Rule is made absolute to the
aforesaid extent. Direct service is permitted.
It is clarified that the FIRs are quashed only in respect
of the applicants herein and not the entire FIRs if the same
contains names of other persons as well.
Sd/-
(NIRZAR S. DESAI,J)
SAVARIYA
