Bombay HC refuses to quash FIR over WhatsApp status: Dissent only after analysis

On April 10, the division bench of Justice Sunil B Shukre and Justice M M Sathaye said the messages of the petitioner, a member of a parents-teachers group, prima facie had an impact on the minds of different groups of people and that constituted an offence under IPC section 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence).

The bench said the constitution of offence can be ascertained on merit after examining evidence during the trial stage and, therefore, it was not a fit case to quash the FIR.

It was alleged that below the first status message related to August 5, it was written, “Article 370 was abrogated, we are not happy”. The petitioner had also posted another status message, “14th August Happy Independence Day”.

Advocate Karim Pathan, who appeared for the petitioner, submitted that he had not circulated any derogatory message and had no intention to promote enmity or disharmony between different groups. He said the FIR should be quashed. The police opposed the plea.

The bench said, “In respect of this message (August 14), we do not think that the message would be covered by Section 153-A of the IPC as no reasonable person with strong mind would see anything wrong in celebrating Independence Day of other countries without denouncing celebration of Independence Day of one’s own country, which is the case here. But, about the first message proclaiming August 5 as a black day of India, we feel that there is something which needs consideration on merits of the matter.”

The bench noted the message related to August 5 was without giving any reason or any critical analysis of the step taken by the Central government to abrogate Article 370.

“In our view, this message has the tendency to play with emotions of different groups of people in India as there are strong feelings of contrasting nature about status of Jammu and Kashmir in India and, therefore, one has to tread cautiously in such a field, lest the emotions may reach up to such a level as to bring about consequences or reasonable possibility of consequences visiting as envisaged in Section 153-A of IPC,” the bench said.

“No doubt, in a democratic country like India where there is a fundamental right in the nature of freedom of speech and expression under Article 19 of Constitution, every word of criticism and every view of dissent is important for maintaining democracy in a good state of health. But, we may add that at least in sensitive matters, any critical words or dissenting view must be expressed after proper analysis of the whole situation and must provide for the reasons for which the critic or dissent is made,” it said.