The court emphasized that for an offence under the SC/ST Act to be established, there must be intent to humiliate based on caste, which was not present in this case.

JUDGMENT

BAIL APPLN. 3985/2023

1. The present application is filed seeking grant of bail in FIR No. 69/2023 dated 28.08.2023 registered at Police Station Dimapur for offences under Sections 153A/153B/505(1) & (2) of the Indian Penal Code, 1860 (‘ IPC ’) and Section 3(1)(r)/(s)/(u) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST Act’).

Brief Facts

2. Briefly stated, the allegations in the FIR stem from a social media post allegedly made by the applicant, which is claimed to incite communal hatred, enmity, and disharmony between different groups based on religion, caste, or race and target members of the Scheduled Castes and Scheduled Tribes.

3. On 18.11.2023, the Nagaland Police arrested the applicant from his residence in New Delhi. The applicant was taken to the Special Judge, SC/ST Act, South, Saket Courts, New Delhi, for transit remand. However, the Court declined to grant transit remand and instead granted interim bail for 10 days, pending further proceedings.

4. It is alleged that the arrest of the applicant was illegal due to non-compliance with procedural safeguards under Section 41A of the CrPC, as no notice was served prior to the arrest.

Submissions

5. The learned counsel for the applicant/petitioner argued that the arrest of the applicant by the Nagaland Police was illegal, given the violation of Section 41A of the CrPC, which mandates that notice be served to the accused in cases where the alleged offence carries a punishment of imprisonment less than seven years. The learned counsel contended that no such notice was served, and thus the arrest was in contravention of the procedural safeguards as laid down by the Hon’ble Apex Court in Arnesh Kumar v. State of Bihar : (2014) 8 SCC 273 .

6. He submitted that the allegations in the FIR are based on a social media post and that the applicant has fully cooperated with the police authorities. His laptop and mobile phone have been seized, and there is no chance of tampering with the evidence or influencing witnesses.

7. He submitted that the applicant is entitled to transit bail to enable him to approach the court of competent jurisdiction in Nagaland.

8. It is also submitted that the applicant does not pose a flight risk and has deep roots in society, being a social worker involved in the welfare of stray animals.

9. He submitted that the FIR is filed with malicious intent and further seeks its quashing in W.P.(CRL) 1350/2024 on the grounds that no case is made out. It is also contended that the petitioner, Akash Tanwar, is a resident of Delhi and that the alleged offence—an Instagram post—was made while he was residing in Delhi. Therefore, it is submitted that the cause of action substantially arose in Delhi, where the petitioner resided and posted the content in question.

10. He submitted that since the post was allegedly circulated via social media, which operates in cyberspace – the accessibility of the post in Nagaland does not automatically confer jurisdiction to the authorities there. The petitioner relied on the Supreme Court’s judgment in Navinchandra N. Majithia v. State of Maharashtra : (2000) 7 SCC 640 , where it was held that the High Court could exercise jurisdiction to quash an FIR if a substantial part of the cause of action arose within its territorial limits. Based on this precedent, the petitioner had contended that the Delhi High Court has jurisdiction to quash the FIR, as the alleged offence originated in Delhi.

11. Moreover, the learned counsel submitted that the registration of the FIR in Nagaland was an abuse of the legal process and an act of harassment, as the petitioner had no connection to the state of Nagaland. The learned counsel argued that the FIR was lodged merely because the complainant, who is based in Nagaland, was offended by the content, even though the actions leading to the post took place in Delhi.

12. He submitted that the offences under Sections 3(r), 3(s), and 3(u) of the SC/ST Act, are erroneou