merely making allegation against the leaders of a political party even if it is incorrect / untrue would not constitute offence under Section 505(1) of the IPC
At this stage, it would be appropriate to again notice the tweet made by the petitioner vide Annexure P-4 at the cost of repetition which has been made basis for registering the offences under Sections 153A & 505(2) of the IPC against him. The said tweet (Annexure P-4) is as follows: –
नेहरू और राजीव को भृष्ट कहने पर कांग्रेसियों ने कम्प्लेन किया हे
..teacher से अभी तो और जलील होना बाकि है
नेहरू ने तो कश्मीर समस्या को भी जन्म दिया न होते नेहरू न होता कश्मीर
राजीव गाँधी ने तो बोफोर्स की चोरी की और 3000 सिखों का क़त्ल भी कराया
जाओ और कम्प्लेन करो
74.On the basis of the aforesaid tweet, respondent No.4 made a report to the police station against the petitioner which has been reduced into writing vide Annexure P-1 in which it has been stated by the complainant / respondent No.4 that the act of tweeting i.e. the above stated contents, on the social platform is not only prejudicial to the maintenance of harmony between different religious communities but is also likely to disturb the public tranquility. It has also been stated that the said tweet has been made with an intention of wounding the religious sentiments of a particular religion. It has further been stated that there is also likelihood that the tweet may cause fear in the Sikh community and induce any person of that community to commit an offence against the State or against the public tranquility, and there is a strong likelihood that it may incite any class or community of person to commit any offence against any other class or community. It has been further alleged that there is strong likelihood that the tweet will give an opportunity to the extremists to disturb the integrity, communal harmony and peace within the country.
75.On a careful perusal of the aforesaid contents which have been levelled in the written report reproduced in the first information report(Annexure P-1), it is quite vivid that it is not the allegation that in the said tweet, two different religious, racial, language or regional groups or castes or communities are involved and as such there is no two different religious groups which is sine qua non for attracting offences under Sections 153A & 505(2) of the IPC and one of the essential and basic ingredients of the above-stated offences of involvement of two different groups is totally missing. In my considered view, there was no intention on the part of the petitioner herein to promote class/community hatred and no attempt was made by the petitioner to incite the people belonging to a community to indulge in any violence and merely alleging inciting the feeling of one community or group without any reference to any other community or group would not attract either of the two penal provisions. The ingredients of offence under Sections 153A & 505(2) of the IPC do not appear to have been made out as required by their Lordships of the Supreme Court in paragraph18 of the judgment in Manzar Sayeed Khan (supra)based upon their earlier decision in Bilal Ahmed Kaloo (supra) followed in the recent decisions in Amish Devgan (supra) and Patricia Mukhim (supra),that at least two groups or communities should be involved. As such, taking the contents of the FIR,respondent No.2 has only raised his apprehension that it is likely to disturb the public tranquility or peace or it is likely to cause fear in the particular community or it induced any community or committee in offence against the State or public tranquility and there are no two groups involved in the aforesaid contents of the FIR. Therefore, the basic ingredients of the offences under Sections153A & 505(2) of the IPC are totally missing.
76.At this stage, it would be appropriate to notice the judgment of the Supreme Court cited by Mr.Sunil Otwani, learned Additional Advocate General, in Shri P.P. Sharma’s case (supra) in which the Supreme Court has held that mere allegation of malafide against the informant and investigating officer cannot be the basis for quashing FIR and proceeding. As such, this judgment is in no way helpful to the State. Similarly, reliance placed in Raj Singh’s case (supra) is also not helpful to the State / respondents and the same is clearly distinguishable to the facts of the present case,as it has been held by the Supreme Court that power of police to investigate into cognizable offence is not controlled by Section 195 of the CrPC.
77.As such, in the considered opinion of this Court,applying the parameters for quashing FIR laid down by the Supreme Court in Bhajan Lal’s case (supra)followed in subsequent decisions, taking the contents of the FIR as it is, no offence under Sections 298, 153A & 505(2) of the IPC is made outagainst the petitioner. Accordingly, FIR No.200/2020 (Annexure P-1) registered against petitioner Dr. Sambit Patra at Police Station CivilLines, Raipur on 11-5-2020 at 7.31 p.m. for the offences punishable under Sections 153A, 298 &505(2) of the IPC also deserves to be and is hereby quashed. W.P.(Cr.)No.279/2020: –
78.In this case, petitioner Tajinder Pal Singh Bagga has been charged for the offences punishable under Sections 153A, 505 of the IPC and Section 66 of theInformation Technology Act, 2000. The allegation against the petitioner is that on the basis of the tweet made by the petitioner in W.P.(Cr.)No.251/2020, he made the following tweet in his twitter handle vide Annexure P-2: “I don’t agree with @sambitswaraj Ji, He said Rajiv Gandhi killed 3000 people. I want to say it’s just official figure,unofficial figure is more than 5000. Rajiv Gandhi is Murderer.”
79.The allegation is confined to the then Prime Minister late Shri Rajiv Gandhi. Facts of this case are similar to that of W.P.(Cr.)No.251/2020and the tweet made by this petitioner is identical to that of the tweet made by petitioner Dr. Sambit Patra except the number of persons. Since the issue has already been examined in this attached writ petition, for the reasons mentioned in the preceding paragraphs (paragraphs 66 to 76) in respect of W.P.(Cr.)No.251/2020, I am of the opinion that no offence under Sections 153A & 505of the IPC is made out against petitioner Tajinder Pal Singh Bagga.
80.The petitioner has also been charged for the offence punishable under Section 66 of the IT Act which states as under: –“66. Computer related offences.—If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both. Explanation.—For the purposes of this section,—(a) the word “dishonestly” shall have the meaning assigned to it in section 24 of the Indian Penal Code (45 of 1860);(b) the word “fraudulently” shall have the meaning assigned to it in section 25of the Indian Penal Code (45 of 1860).”
81.Section 43 of the IT Act provides penalty for damage caused to any computer, computer network, by introduction of computer virus, unauthorised access, and other types of mischief. If any person is found guilty of contravening Section 43 of the IT Act, he is liable to pay damages by way of compensation to the person so affected. This provision relates to civil liability. It is pertinent to mention here that all the acts listed in Section 43 are purely related to the acts committed upon a computer system such as unauthorised access to files, alteration of the files, unauthorised procurement of files, injecting computer viruses, etc.. None of the acts laid down in the said provision pertains to the act, as the present petitioner herein has only made a tweet from his tweeter handle and other allegations against the petitioner is causing disharmony under Sections 153A & 505 of the IPC. There is no allegation in the FIR / complaint, of violating any of the clauses mentioned in Section 43 of the IT Act. Therefore, ingredients of offence under Section 66 of the IT Act against the petitioner are totally missing, rather it is wrongly registered against the petitioner and it deserves to be quashed in exercise of power under Article 226 of the Constitution of India. Accordingly, FIR No.102/2020 (Annexure P-1) registered against the petitioner at Police Station Bhanu pratap pur,District Kanker on 24-5-2020 for the offences punishable under Sections 153A, 505 of the IPC and Section 66 of the IT Act is quashed.
82. As a fallout and consequence of the aforesaid discussion, both the writ petitions being W.P.(Cr.)Nos.251/2020 & 279/2020 are allowed in following terms: –1.FIR No.192/2020 (Annexure P-2) registered against petitioner Dr. Sambit Patra at Police Station Bhilai Nagar, Distt. Durg on 11-5-2020at 7.29 p.m. for the offences punishable under Sections 499, 500, 501 & 505(1) of the IPC and consequent proceedings are hereby quashed.Similarly, FIR No.200/2020 (Annexure P-1)registered against him at Police Station Civil Lines, Raipur on 11-5-2020 at 7.31 p.m. for the offences punishable under Sections 153A, 298 &505(2) of the IPC and consequent proceedings are also hereby quashed. 2.FIR No.102/2020 (Annexure P-1) registered against petitioner Tajinder Pal Singh Bagga at Police Station Bhanu pratap pur, Distt. Kanker on 24-5-2020 for the offences punishable under Sections 153A, 505 of the IPC and Section 66 of the IT Act and consequent proceedings are hereby quashed.
83.No order as to cost(s).
Sd/-(Sanjay K. Agrawal)