The judgment emphasizes the need for a thorough and fair investigation in cases of alleged offences and highlights the distinction between free speech and hate speech in the context of the penal law.

JUDGMENT

1. This anticipatory bail application under Section 438 Cr.P.C. has been filed by the petitioner apprehending his arrest in connection with FIR No. 61/2022, Police Station Sujangarh, District Churu for offences under Sections 354A, 354-C, 153-A, 298, 509 IPC.

2. Learned counsel for the petitioner submits that the petitioner has nothing to do with the alleged crime and he has been falsely implicated in this case out of political rivalry. It is argued that the petitioner is a reputed person. He shall not abscond and will cooperate in the criminal proceedings. Learned counsel relied upon the decision of Hon'ble Apex Court in the case of Mohammed Zubair v. State of NCT of Delhi & ors (2022 Live Law (SC) 629). It is further submitted that the petitioner had filed S.B. Criminal misc. petition No. 5210/2022 before this Court in which the Co-ordinate bench of this Court directed the investigation to consider the petitioner's representation in the light of judgment of Hon'ble Apex Court in the case of Mohammed Zubair (Supra). However, the investigating officer is not considering his representation and is bent upon arresting the petitioner. Therefore, the petitioner maybe enlarged on anticipatory bail.

3. Per contra, learned Public Prosecutor vehemently opposed the bail application. While reiterating the prosecution case stated in the FIR, he contends that the petitioner had made several posts disturbing religious feelings and outraging the modesty of a woman. Therefore, at this stage, no case for grant of anticipatory bail is made out in favour of the petitioner.

4. Heard learned counsel for the parties and perused the material available on record including the case diary.

5. On perusal of the FIR filed by the complainant as well as case diary, it is revealed that the allegation against the petitioner is that of posting alleged defamatory/inciting material on social media having no authentication against Mahant of Thakurji temple and a widow lady which disturbed the religious sentiments of people. The viral messages containing offending material have been supplied by the complainant to the investigating officer which is available on record. Further from the perusal of statements recorded under Section 161 & 164 Cr.P.C, it cannot be said that the petitioner has falsely been implicated in this case. Therefore, the case needs a thorough and fair investigation to unravel the truth in the allegations levelled.

6. It is well settled that the power exercisable under Section 438 Cr.P.C. is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. It is also well settled that ordinarily, arrest is a part of the process of investigation intended to secure several purposes and it may be necessary to curtail the freedom of an accused in order to enable the investigation to proceed without hindrance and prevent the disappearance of the accused.

7. In the case in hand, considering the material placed on record, a strong prima facie case is available against the petitioner and it would not be proper at this stage to release the applicant on pre-arrest bail. So far as the case of Mohammed Zubair (supra) relied upon by counsel for the petitioner is concerned, the Hon'ble Apex Court granted interim protection to Mohammed Zubair as he was a journalist and after being granted interim bail in one FIR, he was subjected to sustained investigation through successive FIRs registered in various police stations. Thus, it was held that there was no justification to keep the accused in continued custody and to subject him to an endless round of proceedings before diverse courts, which is not the case in hand.

8. There is indeed freedom of speech and expression granted to every citizen as per Article 19(1)(a) of the Constitution of India. Anybody can make any co