Bombay High Court: In a controversial case, wherein an FIR had been filed against the petitioner, Sunaina Holey for allegedly creating hatred and enmity between different religious communities, the Division Bench comprising of M.S. Karnik and S.S. Shinde, JJ., held that,

“The right to express one’s views is a protected and cherished right in our democracy. Merely because the point of view of the Petitioner is extreme or harsh will not make it a hate speech as it is only expressing a different point of view.”

Reportedly, the Petitioner had been booked under Section 153A of the Indian Penal Code, 1860 for her “Tweet” which she had posted on the social media website on 14-04-2020. The said tweet reads as: “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 @narendramodiji.Hain? Bandra Masjid Location Hai. Ab aur kuch bolu? Single Source Kaaf Hai. @ Dev_Fadnavis Help”.

Admittedly, in the video reposted by the petitioner a member of the crowd was seen blaming the Prime Minister of India for the outbreak of Covid-19 pandemic. It was the stand of the petitioner that the Petitioner was not the author or the creator of the said video and that, no case had been registered against the person(s) who created the said video. The Petitioner was unhappy with this viewpoint and reposted the video in order to criticize the same.

Whether reposting the video along with the tweet makes out a case of constituting offence under Section 153A of IPC?

Relying on the decision in Whitney v. California, 274 U.S. 357, 375—377[1927], the Bench reiterated, “fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.”

While considering the validity of the FIR against the Petitioner the Bench referred to various decisions of the Courts around the world including the Supreme Court of India. Consequently, the Bench opined that, some of the propositions which could be culled out and be considered in the contextual facts of the present case were:

  1. It is not an absolute proposition that one must wait for investigation to be completed before quashing FIR under Section 482 of Cr.PC as the same would depend upon the facts and circumstances of each case. (Manzar Sayeed Khan v. State of Maharashtra (2007) 5 SCC 1 and State of Haryana v. Chaudhary Bhajanlal 1992 SCC (Cri.) 426)
  2. The intention of the accused must be judged on the basis of the words used by the accused along with surrounding circumstances. (Manzar Sayeed Khan Vs. State of Maharashtra (2007) 5 SCC 1)
  3. The statement in question must be judged on the basis of what reasonable and strong minded persons will think of the statement, and not on the basis of the views of hypersensitive persons who scent danger in every hostile point of view. (Manzar Sayeed Khan v. State of Maharashtra (2007) 5 SCC 1)
  4. In order to constitute an offence under Section 153A of the IPC, two communities must be involved. Merely inciting the feeling of one community or group without any reference to any other community or group cannot attract either Section 153A. (Bilal Ahmad Kaloo v. State of A.P. (1997) 7 SCC 431 )
  5. The intention to cause disorder or incite people to violence is the sine qua non of the offence under Section 153A of IPC and prosecution has to prove prima facie the existence of mens rea on the part of the accused. (Balwant Singh v. State of Punjab, (1995) 3 SCC 214)
  6. A citizen or even an influential person is under no obligation to avoid a controversial or sensitive topic. Even expressing an extreme opinion in a given case does not amount to hate speech. (Amish Devgan v. Union on India, (2021) 1 SCC 1)
  7. The likelihood of harm arising out of the accused’s speech must not be remote, conjectural or far-fetched. ((Amish Devgan v. Union on India, (2021) 1 SCC 1)

Noticing that, the petitioner was not the author of the video. She had merely reposted it on her twitter, expressing her opinion thereby, criticizing the member in the crowd who blamed the Prime Minister of India for the outbreak of the pandemic and that no offence had been registered against the author of the video reposted by the petitioner, the Bench expressed,

“The State wants us to read too many things between the lines to come to the conclusion that an offence under Section 153A IPC is made out.”

The tweet in question, if judged on the basis of what a reasonable and strong minded person will think of it, would leave little manner of doubt that the same was only expressing a hostile point of view. Observing that the said video was already in circulation and the petitioner merely reposted the video on her twitter feed objecting the view point of the person in the video who was blaming the Prime Minister for the spread of virus., the Bench stated,

“The intention on the part of the Petitioner can by no stretch of imagination be said to cause disorder or incite people to violence which is sine qua non for the offence under section 153A of IPC.”

Assuming that the said tweet was an extreme view expressed in retaliation, the same still had to be judged from the standpoint of what the reaction of a strong minded, reasonable or a prudent person would be. Moreover, the contents of the tweet would reveal that neither any community nor any religion was named. The Bench stated that though the police machinery had ample opportunity to investigate, nothing had been placed on record to indicate that the said tweet led to any disturbance. Merely because a reference was made to Bandra Masjid in the tweet by the Petitioner would not attract the provisions of Section 153A of IPC since there was no disturbance reported immediately after the tweet was posted or even during the course of investigation as a result of the tweet. The Bench remarked,

“The Respondent’s approach towards the tweet is hypersensitive and over cautious thereby trying to scent danger in the hostile point of view expressed by the Petitioner.”

Consequently, after a careful and in-depth consideration, the Bench quashed the FIR filed against the Petitioner. [Sunaina Holey v. State of Maharashtra, Cr. WP No. 4732 of 2020, decided on 05-05-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsels for the Petitioner: Dr.Abhinav Chandrachud, Chandansingh Shekhawat, Yashowardhan Deshmukh, Sailee Dhayalkar and Farishta Menon

Counsels for the State: Manoj Mohite, Vivek Babar and J.P.Yagnik

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