Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Samit Gopal and Ramesh Sinha, JJ., while addressing the present petition made the following observation:

“…the freedom of speech cannot be extended to such extent which may be prejudicial to the National interest.”

Counsel for the petitioners: N.I. Jafri, Senior Advocate assisted by Khalid Mahmood, Counsel for the petitioners, Meena A.G.A appearing for the State.

Petitioner seeks quashing of the FIR by the present petition, which has been registered under Section 67 of the Information Technology (Amendment) Act, 2008, Sections 153-A, 153- B and 124-A of Penal Code, 1860.

Petitioners Counsel submitted that petitioner shared posts against the activities of the Government on her Facebook which is said to be an Anti-National activity and she is also alleged in making posts on Facebook against the Prime Minister Shri Narendra Modi and Chief Minister Yogi Adityanath from 2014 to 2017 but she did not share posts after 2017, while the F.I.R. has been lodged in the year 2020.

Further, he adds that the petitioner had simply shared the Facebook posts on somebody else’s Facebook post which does not at all amount to spreading disharmony or feeling of enmity, hatred or ill will between different religions and is not prejudicial to National Integration and hence no offence is disclosed against the petitioner.

He also submits that whatever the petitioner has stated in her posts is her right to freedom of speech.

Decision

Bench on perusal of the above states that the material which has been posted by the petitioner appears to be of serious, one which may incite communal disharmony and the impugned FIR discloses cognizable offence against the petitioner, hence no interference is called for by this Court.

Present petition lacks merit and is accordingly dismissed.[Dr Imrana Khan v. State of U.P., Criminal Misc. WP No. 8632 of 2020, decided on 03-09-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Dipankar Datta, CJ and Madhav J. Jamdar, J., while addressing the instant Public Interest Litigation made an observation that,

Right to freedom of speech and expression cannot be exercised to sow seeds of hatred and to create disharmony among religious communities.

Since infammatory posts/messages have the potential of disturbing public peace and tranquility, strong action ought to be taken against those responsible to uphold the high values aimed at by the Constitution.

Communal Disharmony

It has been alleged that Abu Faizal has been posting objectionable video clips as well as offensive messages on YouTube, Facebook and other social media sites which have the potential of creating communal disharmony, a sense of enmity between Hindus and Muslims.

Police has been inactive in getting such posts removed after urging them to do so through the complaint.

In May, this Court had passed an order asking respondents to file an affidavit-in-reply.

Such order further directed investigation against the said Abu Faisal if the substance were found in the allegations made by the petitioner against him. Also, the respondents were directed to block the video uploaded on social media.

Since no step was taken by police, the said Abu Faisal has felt encouraged to post objectionable video clips/offensive messages one after the other with an intention to create unrest.

An FIR was registered by Hyderabad city Cyber Crime Cell against the said Abu Faisal under Section 153-A/269/188/505(1)(b)/505(2) of the Penal Code, 1860 read with Section 67 of Information technology Act, 2000 and during the investigation, it was found that the accused is presently in Dubai.

What did the petitioner seek in view of the above-stated facts?

Petitioner seeks orders on the State and its police force to prevent the commission of cognizable offence by the said Abu Faisal and to take steps for deletion of the offensive video clips/messages, as well as for direction on the respondents 4 to 6 to permanently block the access of the said Abu Faisal to the relevant social media sites.

It is in terms of the power conferred by Section 69A (2) of the I.T. Act that the Rules of 2009 have been framed. Such rules contain a comprehensive procedure for blocking access to information by the public.

Decision in Shreya Singhal v. Union of India, (2015) 5 SCC 1 says that there are only two ways in which a blocking order can be passed – one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by the competent Court.

In view of the above, Court held that neither the State nor its police force can issue a blocking order; it is left to the discretion of the designated officer under the 2009 Rules.

Further, the Court added that insofar as direction on the private respondents to permanently block the access of the said Abu Faisal to their corresponding social media sites is concerned, bench refrained from making any direction but left it free to the private respondents to regulate their affairs and make such exclusion as would be desirable for strong reasons of public policy of India and the integrity of the State.

The duty entrusted upon the police by Sections 149 and 150 of the CrPC to prevent the commission of cognizable offence has to be preceded with knowledge or information of a design to commit a cognizable offence.

However, in the present matter, without having any prior knowledge or information of any design of the said Abu Faisal and the probable time to commit cognizable offence by posting objectionable video clips/offensive messages and without being empowered to block access of the said Abu Faisal to social media sites, it may not be possible for the police to prevent a cognizable offence being committed by him.

Hence in view of the above, PIL was disposed of with a parting observation that,

“…People may exercise some degree of restraint on their liberty of free speech and expression particularly during these testing times.”

“…it is time that the State introduces a regime of conduct with stricter norms but satisfying the test of reasonableness, in the exercise of the power conferred by Article 19(2) of the Constitution, to deal with the rapid rise of absolutely avoidable, uncalled for and unwarranted inflammatory posts/messages on the social media.”

[Imran Khan v. State of Maharashtra, PIL-CJ-LD-VC-23 of 2020, decided on 21-08-2020]

Case BriefsHigh Courts

Bombay High Court: The Division Bench comprising of Ranjit More and Bharati H. Dangre, JJ. addressed a petition filed by Gautam Navlakha an accused in the Bhima – Koregaon Case, in order to quash the proceedings of FIR registered on 08-01-2018 qua him.

Sequence of events

The FIR was registered pertaining to a complaint, initially, for the offence punishable under Sections 153 A, 505(l) (b), 117 read with Section 34 of Penal Code, 1860. FIR proceeds on the lines that fist informant came to know through social networking sites that there is a programme at Shaniwarwada organised by Elgar Parishad and he attended the same.

Further, he stated that some of the performers at the programme enacted shot-plays, dances and songs which were provocative in nature and had the effect of creating communal disharmony. Few objectionable books and other literature were kept at the venue for sale. In the FIR it was also alleged that the banned organisation CO (Maoist) was inciting violence.

Adding to the stated, the allegation that members of Kabir-Kala Manch spread hatred through their songs, plays and speeches causing enmity between different communities and as a result thereof, there were incidents of violence, arson and stone pelting near Bhima – Koregaon causing loss of lives and public money.

January 1st 2018 – Events occurring at Bhima – Koregaon had wide repercussions throughout the State of Maharashtra, law and order was affected. The investigation revealed that there was deep-rooted conspiracy to create communal disharmony and accordingly Section 120-B was added.

May 17th 2018 – Provisions of Unlawful Activities (Prevention) Act, 1967 were invoked. Sections 13, 16, 17, 18, 18 B, 20, 38, 39 and 40 of the said Act were added to the subject FIR.

August 28th 2018 – Petitioner along with four others came to be arrested from their houses in Delhi and was immediately taken to the Court of CJM, Delhi, who granted two days transit remand to Pune police. On the very same day, a habeas corpus petition was filed on behalf of the petitioner in the Delhi High Court and the Court directed that the petitioner will not be moved from Delhi till further orders. In the evening of the same day, Delhi High Court stayed the mentioned order and directed the house arrest.

August 29th 2018 – Five academicians filed a PIL in the Supreme Court praying for Court-monitored SIT. Supreme Court extended the interim protection granted to the petitioner by Delhi High Court from 28-08-2018.

September 28th 2018 – Supreme Court by majority of 2:1 declined to order a Court-monitored investigation but extended the house arrest.

October 1st 2018 – Delhi High Court quashed the petitioner’s arrest and ordered his release from the house arrest. In pursuance to the liberty granted by the Supreme Court to the petitioner, the present petition is filed. Petition was finally heard on 26-07-2019 and the order was reserved.

Background of the facts

Petitioner claims to be the human right activist for decades and his outspoken views on political issues are claimed to be well within the constitutional guarantee of free speech. He was called upon by the State to assist in securing the release of officials abducted by left-wing extremists in 2011. Petitioner adds that he has been an open critic of left-wing extremist violence.

Contentions

Counsel for the petitioner, Dr Choudhary submitted that the FIR does not disclose any offence under the provisions of UAPA Act. Petitioner had nothing to do with either Elgar Parishad or the organisation of the event as mentioned above, either as the member of the said Parishad or as a participant in the event. Neither the petitioner was present nor involved in the violence of Bhima-Koregaon, therefore, subject FIR is manifestly unjust and is liable to be quashed.

References in the computer of a third party are being used against the petitioner, which is not legally permissible. Mere references by name is insufficient for adding someone in the FIR. Counsel also added to his submissions that even if the allegations made in the FIR are taken at face value, they do not make out a case against the petitioner and therefore the subject FIR deserves to be quashed qua the petitioner.

Learned APP, Mrs Pai submitted that the petitioner is found to be working and is an active member of a banned terrorist organisation, namely, Communist Party of India (Moist). Petitioner was also found providing strategic inputs in furtherance of the objective of armed rebellion as per the strategic document of the banned terrorist organisation.

Conclusion

The High Court on perusal of the material filed, contentions, facts and the documents recovered from the electronic devices of the petitioner and others relied upon by the prosecution as disclosed in the charge-sheet, are satisfied that the investigating agency has material to connect the petitioner in the subject crime.

Court stated that in respect to the nature and magnitude of the conspiracy, the investigating agency is required to be given sufficient time to unearth the evidence against the petitioner, especially when the scope of investigation is not restricted to Bhima-Koregaon incident but activities leading to the incident and subsequent activities as well are the subject matter of investigation.

Therefore, the present petition in view of the above is without any merit and the same is accordingly dismissed. [Gautam P. Navlakha v. State of Maharashtra, 2019 SCC OnLine Bom 1866, decided on 13-09-2019]