The Nagpur Bench of the Bombay High Court has refused to quash a case registered against a 58-year-old man for allegedly posting an offensive message in a WhatsApp group, noting that "prima facie, the post was objectionable" and the Police should investigate the case. The Court also took note of the prosecution's argument that the accused had deleted the post from the group and his mobile phone after the case was registered, with an intention to destroy evidence.
A Bench of Justice VM Deshpande and Justice Amit Borkar, by its order passed on September 6, a copy of which was made available on Wednesday, dismissed the application filed by the accused Jafar Ali Sayyad, seeking to quash the FIR registered against him in October 2019 by the Kanhan police in Nagpur.
"We have carefully considered the allegations in the FIR and reply filed by the Investigating Agency. On careful scrutiny of the FIR, we are of the prima facie opinion that the message posted by the applicant, as stated in the FIR, is objectionable. Whether there was malicious intention on the part of the applicant is a matter to be considered by the Investigating Agency during the investigation. We are of the opinion that at this stage, the right of the Investigating Agency to investigate into the offence cannot be throttled. It is well settled that discretion conferred by Section 482 of the Code of Criminal Procedure is to be exercised judiciously and in consonance with well established principles set out by the Hon'ble Supreme Court," the Court noted in the order after perusing the FIR and the plea.
The Bench also held, "The power to quash the FIR cannot be invoked to scuffle the legitimate prosecution. This being settled position in law and it could not have proper to express conclusive opinion as to the nature of the offence or nature of the investigation to be carried out by the Investigating Agency and it would be advisable to leave it for the Investigating Agency to consider as to whether there is sufficient material available against the applicant, in relation to the offence alleged against the applicant are fulfilled or not. Whether the contents of the message are malicious or intended to outrage religious sentiments of the community cannot be considered at this stage and it is in the interest of justice to be left to the Investigating Agency to be determined."
The Prosecution had argued that, "The Investigating Authority found during the investigation that the message posted by the applicant is seriously abusive message, which was sent to the members of the group by the applicant. After registration of the FIR, initially the applicant was absconding and did not co-operate with the investigation but, after getting protection in the form of anticipatory bail, the applicant appeared before the Investigating Agency. During the investigation, it was found that the applicant deleted the offending message from his Cell Phone with intention to destroy evidence. During the investigation, statements of various witnesses have been recorded, which show that the message posted by the applicant is highly objectionable."
Facts of the Case
The FIR came to be registered against the applicant with accusations that the applicant is a Member of WhatsApp group consisting of the complainant and other colony members, created for the purpose of Durga Pooja and other programmes of Durga Festival. The Durga Festival was arranged by the local community and colony members. It is alleged that on 9th October 2019, the applicant posted abusive and dis-respectful message about Goddess Durga with an intention to create disturbance in the locality and with the intention to hurt public sentiments in the locality. FIR was registered against the applicant under section 295A (deliberate and malicious acts intended to outrage religious feelings) and 153(A) (promoting enmity between different groups on grounds of religion) of the India Penal Code (IPC).