Jitendra Narayan Tyagi @ Vasim ... vs State Of Uttarakhand
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     HIGH COURT OF UTTARAKHAND AT NAINITAL

            First Bail Application No.161 of 2022


Jitendra Narayan Tyagi @ Vasim Rizvi                       .....Applicant

                                    Vs.

State of Uttarakhand                                ........ Respondent

Present :   Mr. Rakesh Thaplyal, Senior Advocate assisted by Mr. Lalit
            Sharma, Advocate for the applicant.
            Mr. Pratiroop Pandey, AGA for the State.
            Mr. Pranav Singh, Advocate for the informant.


Hon'ble Ravindra Maithani, J.

Applicant Mr. Jitendra Narayan Tyagi @

Vasim Rizvi is in judicial custody, in Criminal Case

No.8 of 2022, under Sections 153A, 298 IPC, Police

Station Kotwali, Haridwar, District Haridwar. He has

sought his release on bail.

2. Heard learned counsel for the parties and

perused on record.

3. The FIR in the instant case has been lodged

by Nadim Ali, the informant. According to it, a Dharm

Sansad was organized in Haridwar between 17th and

19th December, 2021, in which, it was resolved to wage

war against a particular religion; objectionable words

were used with regard to the religion, Prophet and

religious books. Even thereafter, the chapter did not

close. The petitioner, thereafter, released a video

message, in which, he again abused a particular

religion, Prophet and made utterances so as to wage

war against a particular religion.

4. Learned Senior Counsel appearing for the

applicant would submit that the offences are

punishable maximum for three years of imprisonment

and triable by the Magistrate. One of the accused,

relating to the Dharm Sansad has already been

granted bail by the trial Court with certain conditions.

It is argued that the applicant may also be enlarged on

bail, subject to the conditions as may be imposed by

this Court. Learned Senior Counsel has also raised the

following points in his submissions;

(i) After the Dharm Sansad, nothing had

happened as was anticipated in the FIR

No.849 of 2021, which was lodged on

23.12.2021 with regard to the

statements made in the Dharm Sansad.

(ii) The Constitution of India gives

freedom of speech and expression. It

cannot be restricted.

(iii) The applicant studied a particular

religion. He had written a book also,

which was launched by him on 5th

November, 2021 in Gaziabad, U.P., and

on 12th November, 2021 in Haridwar.

Thereafter, an FIR No.810 of 2021 was

lodged against the applicant with

regard to the book. But, it is argued

that the book has never been forfeited

under Section 95 Cr.P.C. Had it been

done, it is argued the applicant would

have challenged such order in appeal.

5. In support of the contention, learned Senior

Counsel has placed reliance on the principles of law as

laid down in the case of Harnam Das vs State of Uttar

Pradesh, AIR 1961 SC 1662, and Azizul Haq Kausar

Naquvi and Anr. Vs. the State AIR 1980 All 149, 1980

Cri LJ 448. In both the cases, the order forfeiting a

book was impugned (Section 95 of the Code of

Criminal Procedure, 1973 (for short, "the Code") and

Section 99A of the Code of Criminal Procedure, 1898).

6. On the other hand, learned counsel for the

State would submit that the applicant provoked the

masses in general to take up arms against a particular

religion; the applicant attempted to promote enmity

between different religions. The applicant has criminal

history of 34 cases. Therefore, it is argued that it is

not a case for bail.

7. Learned counsel appearing for the informant

would submit that with regard to the launch of book

and Dharm Sansad, the applicant was wanted. He was

served a notice under Section 41 of the Code. Despite

that again on 28th December, 2021, it is argued, the

applicant released the video message promoting

enmity between different religions, defaming, belittling

a particular religion.

8. Needless to say, bail is a rule, jail an

exception. There are various factors, which are taken

into consideration, while considering the bail

application. Essentially, the purpose is to secure the

presence of an accused during trial, but related to it is

seriousness of offence; position of the offender and the

victim; impact after alleged offence on the society;

chances of tampering with the evidence etc. Bail

balances individual liberty with societal interest. After

all, right to life and liberty is one of the illuminated

rights enshrined in our constitution.

9. In the case of Rajesh Ranjan Yadav @ Pappu

Yadav vs. CBI, (2007) 1 SCC 7, these aspects have

been discussed by the Hon'ble Supreme Court in

paragraph 16 as hereunder:-

"We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society." (emphasis supplied)

10. In terms of punishment, it is true that the

offences are punishable for maximum three years of

imprisonment with or without fine. The evidence

that is available is the statements of the

witnesses as well as the video recorded. The

transcript has been filed by the State Government

with its counter affidavit.

11. This Court refrains to reproduce from the

transcript as to what was allegedly stated by the

applicant. But, undoubtedly, the transcript reveals

that there are huge derogatory remarks against a

particular religion; against Prophet. The Prophet

has been abused; it intends to wound the religious

feelings of persons belonging to a particular religion; it

intends to wage war. It promotes enmity. It is a hate

speech.

12. Right to freedom, as granted under the

Constitution is not an absolute right. It has

limitations. Right to freedom of speech and expression

is subject to the restriction as given under Article 19(2)

of the Constitution. When the Fundamental Rights

were being discussed in the Constituent

Assembly (Constituent Assembly debates on

04.11.1948), Dr. B.R. Ambedkar has said;

"I am sorry to say that the whole of the criticism about fundamental rights is based upon a misconception. In the first place, the criticism in so far as it seeks to distinguish fundamental rights from non- fundamental rights is not sound. It is incorrect to say that fundamental rights are absolute while non- fundamental rights are not absolute. The real distinction between the two is that non-fundamental rights are created by agreement between parties while fundamental rights are the gift of the law. Because fundamental rights are the gift of the State it does not follow that the State cannot qualify them.

In the second place, it is wrong to say that fundamental rights in America are absolute. The difference between the position under the American Constitution and the Draft Constitution is one of form and not of substance. In support of every exception to the fundamental rights set out in the Draft Constitution one can refer to at least one judgment of the United States Supreme Court. It would be sufficient to quote one such judgment of the Supreme Court in justification of the limitation on the right of free speech contained in Article 13 of the Draft Constitution. In Gitlo vs. New York in which the issue was the constitutionality of a New York "criminal anarchy" law which purported to punish utterances calculated to bring about violent change, the Supreme Court said:

"It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom."

It is therefore wrong to say that the fundamental rights in America are absolute, while those in the Draft Constitution are not."

13. The law commission of India examined the

issue of hate speech and in its 267 report

recommended certain amendments in the penal laws.

The far reaching effect of hate speech has been

discussed by the Hon'ble Supreme Court in the case of

Pravasi Bhali Sangathan Vs. Union of India and

others, MANU/SC/0197/2014, as hereunder:-

"7. Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected group's ability to respond to the substantive ideas under debate, thereby placing

a serious barrier to their full participation in our democracy."

14. Having considered the repeated nature of

allegations; the kind of utterances which the applicant

has allegedly made, published video message and its

possible impact on the society, this Court is of the view

that it is not a fit case for bail. Accordingly, the bail

application is liable to be rejected.

15. The bail application is rejected.

(Ravindra Maithani, J.) 08.03.2022

Ravi