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BOMBAY HIGH COURT
S.S. Shinde and M.S. Karnik, JJ.
Sunaina Holey – Petitioner
versus
State of Maharashtra through the Public Prosecutor and Ors. – Respondents
Criminal Writ Petition Stamp No.4732 of 2020 and (Criminal WP-ASDB-LDVC-287 of 2020)
Decided on 5.5.2021
Indian Penal Code, 1860 – Section 153A – Constitution of India – Article 226 read with Section 482 of Criminal Procedure Code, 1973 – Promoting communal and social disharmony – FIR – Quashing petition – FIR has been registered against Petitioner for a tweet which she posted on social media website known as Twitter – Petitioner did not create the video and no case has been registered against person(s) who created the video – Petitioner reposted the video which was already created by someone else on her Twitter feed – In the video, one person is seen informing crowd that Covid-19 pandemic is an act of God, when another person in crowd can be heard shouting that Covid-19 pandemic is not an act of God but has been brought about by Prime Minister of India – Intention on part of Petitioner can by no stretch of imagination be said to cause disorder or incite people to violence which is sine qua non for offence under Section 153A of IPC – It is also not the case of Respondents that there was disturbance of law and order or of public order or peace and tranquility as a result of tweet made by Petitioner – Though police machinery had ample opportunity to investigate, nothing has been placed on record to indicate that tweet led to any such disturbance – Right to express one’s views is a protected and cherished right in our democracy – Merely because point of view of Petitioner is extreme or harsh will not make it a hate speech as it is only expressing a different point of view – FIR quashed. (Paras 30, 43, 45, 46 and 47)
Result: Writ Petition allowed.
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 offence 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 @ narendra-modiji.Hain? Bandra Masjid Location Hai. Ab aur kuch bolu? Single Source Kaaf Hai. @ Dev_Fadnavis Help”.
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 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 upon the decision of the Hon’ble Supreme Court in the case of (2007) 5 SCC 1, 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
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