Mere Possibility Of Communal Disturbance Not Enough For Criminal Prosecution Over Social Media Post: Bombay High Court

The Bombay High Court while quashing FIR against a 20-year-old female engineering student for reposting a controversial post against "Operation Sindoor", held that a mere possibility that a publication may lead to resentment or displeasure, cannot be a ground to prosecute someone.

Single-judge Justice Milind Jadhav said that he is conscious of the fact that the said post related to religion and that religious sentiments require to be considered with sensitivity and responsibility, particularly in a Society comprising persons belonging to different religious communities.

"At first glance, it is seen that the contents of the post in question may have had the potential to create apprehension of disturbance between religious communities, however, the mere possibility that a publication may cause displeasure or resentment cannot, by itself, constitute sufficient ground for criminal prosecution. This is so because the allegations must satisfy the essential ingredients of the penal provisions invoked," the bench held.

The distinction between content which may be objectionable and conduct which constitutes a criminal offence therefore cannot be overlooked, the bench added.

The judge further added that criminal law cannot be set into motion merely because a particular publication is perceived to be offensive, unless the conduct falls within the prohibition prescribed by law.

Further the judge noted that no actual incident of communal disturbance or other consequential unlawful activity was attributable to the applicant's re-post and thus opined that when the prosecution seeks to attribute criminal liability on the ground that a publication was likely to disturb communal harmony, the relevant statutory requirements must be satisfied.

"The apprehension of a possible disturbance cannot substitute for the specific acts, intention or knowledge required by law. In the present case, the absence of any identified consequential incident, when considered alongside the prompt deletion of the post, the apology tendered by Applicant and the absence of specific material establishing the statutory ingredients, reinforces that the prosecution lacks a sufficient factual foundation," the judge said.

The judge further opined that a chance is required to be taken by the Court because trial and punishment has to be believed to be inflicted for a "reformative result" rather than being "punitive" in nature especially when Applicant is young student.

"It is widely believed that education can transform lives and generations. It is seen that Applicant is a young Engineering student and has no criminal antecedent. The incident in question appears to be an isolated act of re-posting, followed by its voluntary deletion and an expression of remorse probably because of the exuberance of youth and age. In my opinion, the circumstances indicate that the Applicant did not persist in her said conduct rather corrected herself. A youthful error of judgment cannot automatically be equated with a deliberate criminal act in the absence of material establishing the ingredients of the alleged offences," the judge observed.

The judge further opined that considering the young age and the career prospects of the Applicant, a chance is therefore required to be taken by the Court because trial and punishment has to be believed to be inflicted for a "reformative result rather than a punitive measure." The judge added that the Applicant has already suffered custody, which in itself for a young student is a scar which cannot be erased easily.

"The prosecution case is dependent upon the mere act of re-posting and nothing more with regard to the incident in question. Hence from the perspective of powers conferred on this Court under Section 482 of CrPC, I am inclined to consider the Application for quashing of the criminal proceedings," the judge said.

Lastly, the judge noted that the applicant is not the author or creator of the original post, though the post is undoubtedly contentious arousing passion and hatred. Her role, the judge noted, is confined to reposting the said post which was already available on the social media platform.

The judge pointed out that though she deleted the post within two hours of reposting it, she even publicly expressed remorse and tendered an apology immediately for having re-posted the content.

"It is pertinent to note that the prompt deletion of the post was a conscious decision on her part and was not pursuant to any direction issued by the investigating agency. These circumstances are relevant while examining the nature of Applicant's conduct and the criminal intention attributed to her," the bench said.

With these observations, the bench quashed the proceedings.

Appearance:

Advocates Farhana Shah, Omar Shah and Amna Khan appeared for Applicant.

Additional Public Prosecutor Amit Palkar represented the State.