May 5, 2021 5:13:52 pm
The Bombay High Court on Wednesday allowed a plea by Navi Mumbai resident Sunaina Holey, seeking the quashing of an FIR lodged against her for her tweet on a gathering of migrant workers outside the Bandra station in Mumbai during the lockdown last April. The high court quashed the FIR registered against Holey.
A division bench of Justice S S Shinde and Justice M S Karnik had reserved its orders in Holey’s plea on January 7, which it passed on Wednesday.
Holey was booked under sections 505 (statements conducive to public mischief) and 153A (promoting enmity between different groups) of the Indian Penal Code and the Information Technology Act.
“Assuming that the said tweet is an extreme view in retaliation for the expression by a person in the crowd who was blaming the Prime Minister of India, the said tweet is to be judged from the mind of a strong prudent person,” HC said.
“It is revealed from the contents of the complaint that no community or religion was named, and if a test of strong and prudent person judgement is applied, said tweet cannot be said to have created hatred between communities. It is difficult to arrive at the conclusion that petitioner has mens rea (intention of wrongdoing),” the bench added.
The bench went on to note, “We appreciate efforts by police to keep vigil on social media platforms so that the situation does not go out of hand. However, action registering FIR, if taken at face value does not constitute an offence. After careful and in depth consideration, we deem it a fit case to quash FIR.”
After senior advocate Manoj Mohite for the state government sought a stay on the order to take appropriate steps, the HC refused the request noting that the question of stay does not arise as FIR has already been quashed.
The bench, during an earlier hearing, had asked if Holey’s tweet led to any “chain reaction”.
The state government had then said that the petitioner, with more than 20, 000 followers on Twitter, was a “professional tweeter” and “social media influencer” and was involved in “spreading misinformation” in “volatile situation” and therefore, her posts cannot be disregarded and the FIR against her was justified.
Advocate Abhinav Chandrachud, representing Holey, refuted claims that she had spread communal enmity. He argued that merely having a large following on Twitter did not make his client a “professional tweeter”.
Chandrachud said that Holey’s tweet did not mention any religious community and though several months had passed since the April 14, 2020 tweet, the police had not been able to point to any untoward incident that had taken place following the tweet.
Senior advocate Manoj Mohite, representing the state government and Police, argued that Holey had tweeted offensive posts earlier as well. “She had tweeted something derogatory previously, and then the police had written to Twitter to take it down. So, it is not that the police are vindictive,” he said.
Responding to the court’s inquiry on whether the circumstances aggravated because of Holey’s tweet, Mohite said the tweet was retweeted by her followers. Mohite, however, said that Holey’s tweet was not responsible for migrant workers gathering at Bandra last April.
The state government said that the petitioner was a ‘social media influencer’ and was involved in ‘spreading misinformation’ in ‘volatile situation’ and therefore her posts cannot be disregarded and the FIR against her was justified.
On December 1, stating that a “public office in a democracy” has to face criticism, the HC had said “ultimately, the people have to find a balance between the rights of the entire society and individual rights”. The court also observed that “if we do not allow the younger generation to express, how will they know that what they are expressing is right or wrong”.
Holey has also filed pleas against FIR by police for allegedly making offensive remarks on social media against the Maharashtra government, Chief Minister Uddhav Thackeray and his son Aaditya. The HC said that it will decide them separately on their merits.
A detailed judgement will be made available in due course.
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