Malicious Intent Apparent: Allahabad High Court Refuses To Quash Case Over Alleged FB Post Against 'Nabi Paigambar'

The Court observed that the words employed in the post were clearly made with a "deliberate and malicious intention" of outraging religious feelings.

A bench of Justice Saurabh Srivastava also added that the inherent powers of the HC u/s 528 BNSS are to be exercised sparingly and at the stage of summoning, the HC is not expected to hold a "mini-trial" to examine the defence of the accused.

Briefly put, the applicant-accused (Manish Tiwari) was charged under Sections 302 and 353(2) of the BNS on the allegations of making a post on Facebook against the Prophet of the Muslim community.

The prosecution submitted that some people of the Muslim community resented this act as it was hurting their religious sentiments.

Following an investigation, a charge sheet was submitted and the Chief Judicial Magistrate, Sonbhadra, took cognisance of the offence and passed a summoning order in July this year.

Challenging the entire proceeding, the accused moved the HC, arguing that the Magistrate concerned took cognisance without applying his judicial mind. The primary contention raised by him was that he never made any comment against the Muslim religion.

His counsel submitted that a person nearest to the applicant had made the said comments using the applicant's mobile number.

It was also argued that the accused was being falsely implicated in the case by the concerned police, as no offence was made out against him. Therefore, it was urged to quash the charge sheet and the summoning order.

Justice Srivastava, after perusing the material on record, including the specific comment made by the applicant, found no merit in the arguments of the accused's counsel.

The single judge observed thus:

"From perusal of the material on record including the comment made by the applicant, this Court finds that the words employed in the post clearly, are ones made with deliberate and malicious intention of outraging the religious feelings of a particular section of the community or a class of citizens of the country".

Regarding the argument that the mobile number was misused by someone else, the Court termed these assertions as "factual issues" that require proper adjudication by the trial court based on evidence.

The Bench stated that such factual disputes cannot be conclusively determined in proceedings under Section 528 BNSS.

In its order, the High Court referred to the judgment of the Supreme Court in S.W. Palanitkar and Others v. State of Bihar and Another (2001) to say that the test to be applied is whether there is "sufficient ground for proceeding" and not whether there is "sufficient ground for conviction."

The Court also noted that the consideration of material at the summoning stage is tentative.

The Bench clarified that the Magistrate is only required to record a prima facie opinion and is not expected to examine the defence of the accused in detail at this preliminary juncture.

Thus, dismissing the application, the Court said that no sufficient grounds were made out to invoke the extraordinary jurisdiction under Section 528 BNSS.