Court No. - 33
Case :- CRIMINAL MISC. WRIT PETITION No. - 4264 of 2019 Petitioner :- Iftekhar Ahamad Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Saqib Meezan,Parvez Alam Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J. Hon'ble Vivek Varma,J.
Heard learned counsel for the petitioner; Sri Vinod Kant, Additional Advocate General, assisted by Sri Neeraj Kant Verma and Sri Deepak Mishra, Additional Government Advocates for the respondents 1, 2 and 3; and have perused the record.
The instant petition seeks quashing of the first information report dated 05.02.2019 registered as Case Crime No. 0011 of 2019 at P.S. Bhatpar-Rani, District Deoria, under Sections 153-A, 504 I.P.C.
The allegation in the first information report is with regard to publication of an objectionable and insulting post in the Facebook account of Iftekhar Ahamad (the petitioner) which was shared by him. The screen shot of the post has been brought on record which is at page 17A of the paper book. Screen shot depicts a dog urinating on the mouth of the Chief Minister of the State of UP. The post is titled thus: “Vani Santulan Ke Liye Homeopathic Dava”. That is to control one's tongue / speech a dog's urine is a Homeopathic medicine.
The learned counsel for the petitioner does not dispute that the screen shot which has been brought on record is highly objectionable and insulting. What he contends is that, firstly, the screen shot is not against any religion, caste or community and therefore an offense punishable under Section 153-A of the Indian Penal Code would not be made out and, secondly, in so far as the offense punishable under Section 504 I.P.C. is concerned, the same is a non-cognizable offense for which no first information report could be lodged.
In addition to above, the learned counsel for the petitioner has submitted that the petitioner has only allegedly shared the web-post with his friend in the face book account and such sharing was not with any bad intention and, in fact, such sharing was not by the petitioner but by his minor son who used petitioner's mobile phone to share the post and therefore there is no mens rea and as such no offense can be said to have been committed by the petitioner.
Learned counsel for the petitioner has placed reliance on a decision of the apex court in Bilal Ahmed Kaloo Vs. State of Andhra Pradesh : (1997) 7 SCC 341 so as to contend that mens rea is a necessary ingredient for an offence punishable under Section 153-A I.P.C. or under Section 505(2) I.P.C.
On 15.02.2019, after considering the submissions of the learned counsel for the petitioner, we had required the learned A.G.A. to study the matter and seek instruction as to what offences could be prima facie made out by the alleged web- post.
Sri Neeraj Kant Verma, learned A.G.A., who has appeared on behalf of respondents 1, 2 and 3, has submitted that the Chief Minister of Uttar Pradesh is known to be a Temple Priest. He wears clothes which are understood by Hindu Community at large to be a dress associated with a Hindu Community Priest. The web-post would therefore have the potential to fan ill-will between two religious communities. More so, when it is not in dispute that the web-post had been shared. He has submitted that in so far as the question of mensrea, or whether the post was shared by petitioner's minor son inadvertently, is concerned that is a question of fact which is not to be examined in writ jurisdiction, particularly, at the stage of investigation. It has been argued that the moment a web-post is posted and shared with friends in a facebook account, there would be publication and a large body of person would have access to such information which would then have potential to fan riots and disturb public peace. Therefore it cannot be said, at this stage, that the first information report discloses no cognizable offence. He has further submitted that the police has also added the charge of an offense punishable under Sections 505(1)(c) and 505 (2) of the Indian Penal Code. It has been contended that all the aforesaid offences are cognizable and therefore no case for interference is made out.
We have considered the rival submissions and have perused the record.
The web-post, which has allegedly been shared with a friend, is highly objectionable. It is vastly understood and known that the Chief Minister of Uttar Pradesh had been associated with religious affairs of Hindu community. He is also noticed in priestly attire and in the concerned post his attire is no different. Therefore, at this stage, it cannot be ruled out that such a post, at least prima facie, had the potential to heat up communal feelings which may result in disturbance of public order.
In so far as the question of mens rea is concerned that is a matter to be dealt with on the basis of material collected during the course of investigation and evidence led in trial, if required.
In view of the discussion made above, we decline to interfere in the matter and we, accordingly, reject the prayer of the petitioner to quash the first information report.
The petition is dismissed with liberty to the petitioner to apply for bail.
Order Date :- 25.2.2019 Sunil Kr Tiwaris