ABHAY S. OKA, J. FACTUAL ASPECTS

1. A First Information Report (for short, ‘the impugned FIR’) was registered against the appellant for the offence punishable under Section 153-A of the Indian Penal Code, 1860 (for short, ‘the IPC’). The appellant filed a writ petition before the High Court of Judicature at Bombay for quashing the FIR. By the impugned judgment dated 10th April 2023, the High Court has dismissed the writ petition.

2. The appellant was a Professor at Sanjay Ghodawat College in District Kolhapur, Maharashtra. He came to Kolhapur for employment. Earlier, he was a permanent resident of District Baramulla, Kashmir. The appellant was a member of a WhatsApp group. The allegation of commission of Digitally signed by Anita Malhotra Date: 2024.03.07 17:54:58 IST Reason:

Signature Not Verified offence is based on what was seen on his WhatsApp status.

The State Government has set out the precise text appearing on the WhatsApp status of the appellant in its counter affidavit.

Clauses (c) and (d) of paragraph 3 of the counter affidavit read thus:

“3. .. .. .. .. .. .. .. .. .. .. .. a. .. .. .. .. .. .. .. .. .. .. .. b. .. .. .. .. .. .. .. .. .. .. .. c. During the incident, the Petitioner was employed as a Professor at Sanjay Ghodavat College.

The Petitioner was a member of a WhatsApp group that consisted of parents and teachers. Between August 13, 2022, and August 15, 2022, while being part of this WhatsApp group, the Petitioner posted two messages as their status:

1. “August 5 – Black Day Jammu & Kashmir.”

2. “14th August – Happy Independence Day Pakistan.”

d. Furthermore, after aforementioned status, the Petitioner WhatsApp status on their mobile included the message:

“Article 370 was abrogated, we are not happy.”

Based on these allegations, the present FIR was registered under Section 153-A of the Indian Penal Code, 1860, by the Hatkanangale Police Station in Kolhapur.

.. .. .. .. .. .. .. .. .. .. .. .. ..”

3. By the impugned judgment, the Division Bench of the High Court held that what was stated by the appellant regarding celebrating Independence Day of Pakistan will not come within the purview of Section 153-A of the IPC. However, the other objectionable part can attract the offence punishable under Section 153-A of the IPC.

SUBMISSIONS

4. The learned counsel appearing for the appellant submitted that by no stretch of the imagination, the words written on WhatsApp status by the appellant will promote disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities. He relied upon a decision of this Court in the case of Manzar Sayeed Khan v. State of Maharashtra & Anr1. He submitted that the prosecution of the appellant was a complete abuse of the process of law. The learned counsel representing the respondent-State of Maharashtra submitted that whether the words or signs of the appellant on his WhatsApp status promoted disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities or not, is a matter of evidence. He submitted that it is only after examining the witnesses that the prosecution can establish the effect of these writings or signs on the minds of people. He submitted that at this stage, no conclusion regarding the impact of what is written by the appellant on the minds of the members of the 1 (2007) 5 SCC 1 public can be drawn. He would, therefore, submit that no interference is called for with the impugned judgment, and the trial may be allowed to proceed.

CONSIDERATION OF SUBMISSIONS

5. The only offence alleged against the appellant is the one punishable under Section 153-A of the IPC. Section 153-A of the IPC, as it exists with effect from 4th September 1969, reads thus:

“153-A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts p