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Court No. - 44 / Reserved

Case :- CRIMINAL MISC. WRIT PETITION No. 8431 of 2021

Petitioner :- Siddharth Varadarajan And Another

Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Mehul Khare,Pragya Pandey
Counsel for Respondent :- G.A.

Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Rajnish Kumar,J.

1. Heard Ms. Pragya Pandey, learned counsel for the petitioners and
learned A.G.A. for the State. None appeared for the informant despite
sufficient service.

2. The instant petition has been filed for quashing the First Information
Report (here-in-after referred as FIR) dated 31.01.2021 in Case Crime
No.27 of 2021, under Section 153-B and 505 (2) of Indian Penal Code
(here-in-after referred as IPC), registered at Police Station- Civil Lines,
District- Rampur alongwith consequential reliefs.

3. Petitioner no.1 is the founding editor of online news publication

'The Wire' and the petitioner no. 2 is the reporter of the said online news
publication. The farmers were protesting against three farmer laws enacted
in 2020. As a mark of protest they marched in Delhi on 26.01.2021 and in
an incident near 'ITO' New Delhi, a young man named Navreet Singh
Dibdiba hailing from district Rampur, U.P. suffered serious injuries and
succumbed to death. The State version is that death was caused due to an
accident involving his tractor whereas some of the eye witnesses and the
victims primarily claim that it was due to bullet injury. 'The Wire' covered
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this incident in its report dated 30.01.2021 titled “Autopsy Doctor Told Me
He'd Seen the Bullet Injury but Can Do Nothing as His Hands are Tied”
authored by the petitioner no.2 and shared it on Twitter handle at 10.08
A.M. A clarificatory statement was issued by the three doctors who carried
out the postmortem denying that they had spoken to the media or any other
person or they made any such statement. The said news was also published
by the petitioner no.1 on 30.01.2021 at 04:46 P.M. after it was issued by
Rampur Police at 4.39 P.M. The FIR was lodged on 31.01.2021 at 00.59
bearing FIR No. 27 of 2021 under Sections 153-B and 505 (2) IPC against
the petitioner no.1 on the basis of a complaint by one Sanju Turaiha /
respondent no.3 alleging that the petitioner no.1 by way of the
aforementioned tweet, sought to provocate the masses, spread riot, tarnish
the image of medical officers by proving wrong to the panel of Medical
Officers and disturb law and order and though the doctors who performed
the postmortem denied that they have told the victim's family that the
cause of the death was bullet injuries but the petitioner no.1 did not delete
the tweet. The petitioners approached the Hon'ble Supreme Court
challenging the three FIRs. Including the FIR No. 27 of 2021 in Writ
Petition (Criminal) No.71 of 2021. The Hon'ble Supreme Court by means
of the order dated 08.09.2021 permitted the petition to be withdrawn by
the petitioner no. 2 and granted protection from any coercive action for a
period of two months. Consequently, the present writ petition has been
filed.

4. Learned counsel for the petitioners submitted that the petitioners

have wrongly and falsely been implicated in the case. The allegations
made in the FIR does not disclose the commissioning of any offence under
Section 153-B and 505 (2) IPC. The petitioners had only published the
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statement of the parents of the deceased and the contradictions of the

doctors was also published / uploaded at the earliest after it’s release.
Therefore even if the same was not deleted it does not constitute any
offence. There was no threat of riots and in fact there was no violence or
riot on account of the alleged publication. She had further submitted that
the fair criticism is permissible under law. She had also submitted that the
grand father of the deceased has moved the Delhi High Court praying for a
Court monitored probe into the death of his grandson, where the High
Court has issued the notices and the Delhi High Court is monitoring the
investigation. Therefore the FIR is nothing but an abuse of process of law
and curtailment of right to freedom of speech. Therefore the impugned
FIR is not sustainable in the eyes of law and liable to be quashed.

5. Learned A.G.A. vehemently opposed the submissions of learned

counsel for the petitioners. He submitted that the FIR has rightly been
lodged in accordance with law as despite the contradictions of the doctors
in regard to the statement published by the petitioners, the news item was
not deleted. The allegations levelled in the FIR disclose the
commissioning of offence under Section 153-B and 505 (2) IPC.
Therefore the FIR can not be quashed and the writ petition is liable to be
dismissed.

6. We have considered the submissions of learned counsel for the

parties and perused the record.

7. The farmers were protesting against the three farm laws enacted in
the year 2020. As a part of their protest the farmers marched into New
Delhi on 26.01.2021. During the protest in an incident near 'ITO' New
Delhi, a young man named Navreet Singh Dibdiba hailing from district
Rampur, U.P. died due to certain injuries suffered in the incident. 'The
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Wire' online news publication, the founding editor of which is the

petitioner no.1, covered this incident in its news report dated 30.01.2021
titled as “Autopsy Doctor Told Me He'd Seen the Bullet Injury but Can Do
Nothing as His Hands are Tied” authored by petitioner no. 2. The news
item is extracted below:-
'Autopsy Doctor Told Me He'd Seen the Bullet Injury But Can Do Nothing as His
Hands are Tied'
Grandfather of Navreet Singh, killed in tractor parade on January 26, levels dramatic
charge, doctors deny making any statement.
Note: This story ends with a video of the wounds on Navreet Singh’s face which some
readers may find disturbing.
New Delhi: The family of Navreet Singh – the young man killed during the tractor
parade in the capital on January 26 – has refused to accept the Delhi police’s claim that
he died because his tractor overturned, and insists he was shot – as farmers who say
they were witness to the incident near ITO had originally claimed.
The cause of Navreet Singh’s death is at the centre of three sedition cases that the police
in Uttar Pradesh, Madhya Pradesh and Haryana have filed against journalists
including India Today’s Rajdeep Sardesai, and the Congress politician Shashi Tharoor
for blaming his death on a gunshot.
The Delhi police were quick to release video footage in which a tractor can be seen
crashing into a police barricade and overturning. However, farmers at the scene
claimed Navreet had been shot at before he lost control of the vehicle.
The post mortem report, prepared by a medical officer at the District Hospital, Rampur,
after a 2 am autopsy on January 27, concluded that the “cause of death is shock and
haemorrhage as a result of ante-mortem head injury”, which Delhi Police officials have
cited as consistent with their explanation.
The family, however, contests this report.
‘We were cheated, now courts will decide’
“We were told by the doctor that they have clearly seen the bullet injury, and then we
cremated his body peacefully. But we were cheated, as the [post mortem] report that
came out did not say that. The doctor even told me that even though he had seen the
bullet injury, he can do nothing as his hands are tied,” Hardeep Singh Dibdiba,
Navreet’s grandfather alleged, while speaking to The Wire on Friday, three days after
his death.
On their part, the doctors have denied saying any such thing.
Dibdiba, 68, has been part of the farmers’ protest since the beginning, he says, adding
that he has authored five books on Sikhism. However, after his grandson’s death, he is
back in Dibdiba village of Rampur in Uttar Pradesh.
Noting the mention that the post-mortem report makes of two “lacerated” wounds, one
on Navreet’s chin and the other behind his ear, he said, “They [doctors] haven’t directly
mentioned the word bullet in the post-mortem, but given the circumstances and the kind
of government that is governing the state, they wrote as much as they could about it.
Now the courts themselves will clear the matter once we have a lawyer,” he said.
Navreet’s father, Vikramreet Singh, 46, said, “Everybody who saw his dead body saw
that it was a bullet injury. One of the doctors who did the post-mortem said that it is a
bullet injury, but that he can’t write it.” He added that his son had recently returned
from Australia and went to Delhi to participate in the tractor parade by farmers. “We
will finish his last rites by February, 4 and then go ahead with our plan of action,” he
said.
UP police deny interference or pressure
Denying the family’s bullet injury claim, the seniormost police officer of the area, ADG
Bareilly Avinash Chandra, said, “We had made a panel of senior doctors for the
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autopsy. We have no reason to suppress or distort such a document because the matter
is of Delhi Police.”
One organisation the family could approach, say lawyers, is the National Human Rights
Commission, which could examine the video made during the autopsy and cross
examine the doctor who wrote up the report.
What happened that day?
When this reporter saw Navreet Singh’s body lying on the road at ITO on January 26,
several farmers identified themselves as eyewitnesses to the incident and claimed that
the young man had died as a result of being hit by a bullet.
Though no police personnel were visible within at least 300 meters from the dead body,
the farmers told reporters that the police had “dispersed from the scene.”
Even after the Delhi Police released footage which showed Navreet’s tractor turning
turtle, the farmers at the scene stuck to their claims. “A bullet hit him and that is why he
lost control of the tractor and met with an accident,” said one man who said he was a
witness.
Family says deep gash above ear is ‘exit wound’ of bullet
The post mortem report makes no mention of any bullet injury but does note the
presence of an inverted injury on the left side of Navreet’s lower chin, and an everted
injury above his right ear. The report, which The Wire has accessed, lists six injuries
including those over the eyebrow, chin, skull, ear ossicles, chest and thigh.
The post mortem report mentions a “lacerated wound of size 2cmx1cm over left side of
the chin, 1cm below left angle of the mouth,” adding that “margins are inverted and
bone deep.” Another injury, the report said, was a “lacerated wound of size 6cmx3cm
over [the] right ear, margins are irregular and everted (inside out) right ear ossicles
and brain matter is coming out from [the] wound.” The report also mentions a
“lacerated wound of size 2cmx1cm bone deep medial end of right eyebrow, margins are
inverted,” and “traumatic swelling” over the skull.
The family claims that the injury on his right ear is the exit wound from the bullet.
However, Manoj Shukla, deputy CMO and doctor at the district hospital in Rampur
where the post-mortem report was prepared, said this was not so. Speaking to The Wire
over the phone on Friday, he said that it is possible that something else might have hit
his right ear. “Or you may have got the wrong document,” he added.
According to a senior doctor at the All India Institute of Medical Sciences, speaking to
The Wire on condition of anonymity, laceration wounds can be associated with bullet
injuries. A laceration is a wound that occurs when skin, tissue, and/or muscle is torn or
cut open. Lacerations may be deep or shallow, long or short, and wide or narrow. Most
lacerations are the result of the skin hitting an object, or an object hitting the skin with
force.
He said, “It seems that the post mortem report has carefully been made to remove any
doubts about a bullet injury.” He added that the nature of the injury on his lower chin
and ear could be possible entry and exit points of a bullet injury, especially given that
the two injuries form a straight line. He added, “If a bullet had passed this man’s head,
the mandible bone would have been fractured but the report doesn’t mention it. In fact,
the autopsy report does not mention any X-rays done.”
Navreet Singh’s father says that the doctors had assured them that a bullet injury was
visible in the X-rays but refused to show it to them. Dr. Shukla also confirmed that X-
Rays were taken during the autopsy. However the post-mortem does not refer to any of
them.
The family also shared a video of Navreet’s face, pointing to the deep holes visible in his
left chin and above his right ear, making the point that this was a bullet injury. While it
is impossible for journalists or lay persons to reach any firm conclusion, the family is
hoping an independent probe will establish the truth.
Reacting to Dibdiba’s allegations, the Rampur police tweeted a statement on Saturday
evening signed by the three doctors involved in Navreet Singh’s post-mortem denying
that they had spoken “to the media or any other person” or provided any such
information as is being attributed to them in the media.”
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In the news the State's version as well as the allegations of victim's

family were published. It also carries contents of the postmortem report. A
clarification of the three doctors was issued by the Rampur Police at 04:39
PM on the same date. It was also published, immediately thereafter, at
04:46 PM on 30.01.2021. The statement reads as follows:-

ननट (खणडन)
ददनननक- 27.01.2021 कन रनदत 02.00 बजज शश नवरशत ससनह आयय लगभग 24 वरर पयत शश दवकमजशत
ससनह उरर सनहब ससनह, दनवनसश- गनम दडबदडयन, थननन दबलनसपयर जनपद रनमपयर कन पनसटमनटर म थननन अधयक, दबलनसपयर कज
मममम पर तशन दचदकतसशय पमनल कज दनरन दकयन गयन थन, सजसकक दनयमननयसनर वशदडयनगनरक भश करनयश गयश थश। उपरनक
पनसटमनटर म कज पमनल मम शनदमल तशनम दचदकतसनसधकनररयम मम सज दकसश भश दचदकतसनसधकनरश दनरन मशदडयन मम दकसश भश पकनर
कन वकतवय/बयनन जनरश नहश दकयन गयन हम। और यह भश कहनन हम दक पनसटमनटर म करनज वनलज दचदकतसनसधकनरश दनरन
पनसटमनटर म ररपनटर कक एक पदत पयसलस अधशकक व एक पदत समबननधत थनननधयक/पयसलस असधकनरश कन सशलड पमक सलरनरज
मम उपलबध करनयश जनतश हम। इसकज अदतररक पनसटमनटर म ररपनटर कज समबनध मम मन० नयनयनलय मम आवशयकतन पडनज पर मन०
नयनयनलय दनरन बयलनयज जननज पर हश पनसटमनटर म करनज वनलज दचदकतसनसधकनरश दनरन मन० नयनयनलय मम वकतवय/बयनन ददयन
जनतन हम
अतत शश नवरशत ससनह कक पनसटमनटर म ररपनटर कज समबनध मम दचदकतसनसधकनररयम कज ननम सज मशदडयन मम पकनदशत
दकयज जन रहज समनचनर/वकतवय कन पपररतयत खणडन दकयन जनतन हम दक इस पकनर कक कनई भश वकतवय/बयनन हमनरज दनरन
दकसश भश मशदडयनकमर/दकसश अनय वयदक कन नहह ददयज गयज हम।

ह० अपठनशय ह०अपठनशय ह०अपठनशय

(डन० मन० जयबमर ) (डन० दशरथ ससनह) (डन० मननज कयमनर शयकलन)
दचदकतसनसधकनरश ई०एम०ओ० उपमयखय दचदकतसन
असधकनरश

8. The impugned FIR No. 27 of 2021, under Section 153-B and 505
(2) IPC was registered on 31.01.2021 at 00.59 on a complaint made by the
respondent no. 3. The FIR was lodged with the allegations that the
petitioner by way of the aforementioned tweet, sought to provocate the
masses, spread riot, tarnish the image of medical officers by proving
wrong to the panel of Medical Officers and disturb law and order and
though the doctors who performed the postmortem denied that they have
told the victim's family that the cause of the death was bullet injuries but
the petitioner no.1 did not delete the tweet. The petitioner no. 2, who is
author of the news report shared by the petitioner no.1 on tweeter, was
later on added in the FIR, which was originally registered against the
petitioner no.1. The FIR is extracted below:-
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नकल तहरशर.......... सजवन मम, शशमनन पभनरश दनरशकक, थननन ससदवल लनइनस, रनमपयर। महनदय,
सनदर दनवजदन इस पकनर हम दक पनथर कन सनशल मशदडयन टशटर कज मनधयम सज सनजनन मम आयन हम दक
ससदनथर ननम वयदक दनरन ससदनथर /एसवरदरनजन एकननट सज ददनननक 30.01.2021 कन समय पनतत
10:08 बजज पनसट डनलन गयन हम, सजसमम कहन गयन हम दक ककदर दबल कज दवरनध मम ददलश मम चल रहज
धरनन पदशर न कज ददरनन नवरशत ससनह दडबदडयन कक मकतयय कनररत हह ई थश सजसकज पनसटमनटर म मम
शनदमल एक पमनल डनकटर दनरन नवरशत ससनह कज दनदन हरदशप ससनह कन बयनन ददयन गयन हम दक नवरशत
ससनह कक मकतयय गनलश लगनज सज घनयल हननज कज कनरर हह ई थश। दचदकतसक कज हनथ अनयदचत पभनव मम
बनधज हह ए थज इससलए वह कयछ नहह कर सकन। इस टशट मम सजस तथनकसथत ररपनटर कन हवनलन ददयन
गयन इस इस पकनर सज पसतयत दकयन गयन सजससज वह पनसटमनटर म करनज वनलज दचदकतसक कन कथन
लगज, सजसज पढकर लनग ददगभदमत हन जनयज। इसकज परररनमसवरप रनमपयर कज जन सनमननय मम आकनश
वयनप हन गयन हम एवन तननव बढ गयन हम। यह पनसट दननशचत रप सज रडयनत कज अनतगर त जनसनमननय
कन कदत कनररत कर अनयदचत लनभ कमननज कज उदजशय सज दहनसन भडकननज हजतय दकयन गयन पतशत हनतन
हम। जब दक नवरशत ससनह पयत दवकमजशत ससनह उरर सनहब ससनह दनवनसश गनम दडबदडयन थननन
दबलनसपयर जनपद रनमपयर कन पनसटमनटर म सजलन शनसककय दचदकतसनलय रनमपयर कज शनसककय
दचदकतसन असधकनरश कज 03 सदसयशय पमनल दनरन दकयन गयन थन और उनकज दनरन पनसटमनटर म ररपनटर
सशलड बनद सलरनरज मम दनयमननयसनर पयसलस अधशकक एवन सनबनसधत पभनरश दनरशकक कन पजदरत कक
गयश हम। दचदकतसनसधकनरश दनरन इस समबनध मम दकसश भश वयदक कन कनई बयनन नहश ददयन गयन हम
पनसटमनटर म कक वशदडयनगनरक भश करनयश गयश हम। तशनम शनसककय दचदकतसनसधकनररयम दनरन उक
वनयरल पनसट कन खणडन दकयन गयन हम। इसकज बनवजपद भश उक टशट कन अभश तक हटनयन नहह गयन
हम। दबनन सहश तथयम कक जननकनरश दकयज , जननबपझकर सनशल मशदडयन-दटटर कज मनधयम भडकनऊ
पनसट डनलनन, शनसककय दचदकतसनसधकनररयम कन गलत बयनन दशनरकर मकतक नवरशत ससनह कक मकतयय
गनलश लगनज कन कनरर कनररत हननन बतनकर जन सनमननय कन भडकननज , उपदव रमलननज, शनसककय
दचदकतसनसधकनररयम एवन पमनल कन गलत सनदबत कर उनकक छदव धपदमल करनज कज सनथ हश शनननत एवन
कननपन वयवसथन कन दबगनडनज कन भरसक पयनस दकयन गयन हम। उक ककतय धनरन 505 आई०पश०सश०
एवन 66 ए० आईटशएकट 2008 कज अनतगर त गमभशर अपरनध हम। अतत शशमनन जश सज पनथर नन हम दक
पथम सपचनन ररपनटर दजर कर सनबनसधत कज दवरद कननपनश कनयर वनहश करनज कक ककपन करम। ददनननक
30.01.2021 sd-अनगजजश Sanju पनथर सनजप तयरहम न पयत जशवनरनम दनवनसश पनबदडयन थननन ससदवल
लनइनस रनमपयर। मन० 9149060025 ननटत- मम सशसश1466 दवदपन कयमनर पमनदरत करतन हह ह दक
पनथर नन पत कक नकल कमपयपटर पर शबद ब शबद बनल बनलकर कन० 1465 शवरनद सज टनईप करनयश
गयश।"

9. The aforesaid FIR was lodged under section 153-B and 505 (2) IPC,
which are extracted below for ready reference:-

“153-B. Imputations, assertions prejudicial to national integration.—(1)

Whoever, by words either spoken or written or by signs or by visible
representations or otherwise,— (a) makes or publishes any imputation that any
class of persons cannot, by reason of their being members of any religious,
racial, language or regional group or caste or community, bear true faith and
allegiance to the Constitution of India as by law established or uphold the
sovereignty and integrity of India, or

(b) asserts, counsels, advises, propagates or publishes that any class of persons
shall, by reason of their being members of any religious, racial, language or
regional group or caste or community, be denied, or deprived of their rights as
citizens of India, or

(c) makes or publishes and assertion, counsel, plea or appeal concerning the
obligation of any class of persons, by reason of their being members of any
religious, racial, language or regional group or caste or community, and such
assertion, counsel, plea or appeal causes or is likely to cause disharmony or
feelings of enmity or hatred or ill-will between such members and other persons,
shall be punished with imprisonment which may extend to three years, or with
fine, or with both.
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(2) Whoever commits an offence specified in sub-section (1) in any place of

worship or in any assembly engaged in the performance of religious worship or
religious ceremonies, shall be punished with imprisonment which may extend to
five years and shall also be liable to fine.

505 (2) Statements creating or promoting enmity, hatred or ill-will between

classes.— Whoever makes, publishes or circulates any statement or report
containing rumour or alarming news with intent to create or promote, or which is
likely to create or promote, on grounds of religion, race, place of birth, residence,
language, caste or community or any other ground whatsoever, feelings of enmity,
hatred or illwill between different religious, racial, language or regional groups
or castes or communities, shall be punished with imprisonment which may extend
to three years, or with fine, or with both.”

10. For constituting an offence against a person under Section 153-B

IPC there should be words either spoken or written or signs or visible
representations by a person on account of which any class of persons can
not by reason of their being members of any religious, racial, language or
regional group or caste or community, bear true faith and allegiance to the
constitution of India or uphold the sovereignty and integrity of India or on
account of various factors mentioned therein be denied or deprived of their
rights as citizens of India or such assertion, counsel, plea or appeal causes
or likely to cause disharmony or feelings of enmity or hatred or ill will
between such members and other persons.

11. Similarly for constituting an offence under Section 505 (2) IPC, it
refers to a person making, publishing or circulating any statement or report
containing rumour or alarming news. Thereafter, it refers to the intent of
the person which should be to create or promote and then refers to the
harm-based element, that is, likely to create or promote on the ground of
religion, race, place of birth, residence, language, cast, etc., feeling of
enmity, hatred or ill-will between different religions, racial language,
religious groups or castes or communities, etc. Unless the aforesaid
ingredients are fulfilled the offences under sections 153-B and 505 (2) can
not be made out.
 9

12. The Hon'ble Supreme Court, in the case of Amish Devgan Vs.
Union of India and Others; (2021) 1 SCC 1, has held that a publication
which contains unnecessary asides which appear to have no real purpose
other than to disparage will tend to evidence that the publications were
written with a malafide intention. However, opinions may not reflect
malafide intention. It has further been held that dissent and criticism of the
elected government’s policy, when puissant, deceptive or even false would
be ethically wrong, but would not invite penal action. It has also
considered that as to what will be the impact of statement or impact and
authority of a reasonable person. The relevant paragraphs- 70, 71 & 76 to
78 are extracted below:-

“70. Manzar Sayeed Khan, taking note of the observations in Bilal Ahmad Kaloo,
records that common features of Section 153A. And 505 (2) being promotion of
feeling of enmity, hatred or ill-will ‘between different’ religious or racial or
linguistic or regional groups or castes or communities, involvement of at least two
groups or communities is necessary. Further, merely inciting the feeling of one
community or group without any reference to any other community or group
would not attract either provision. Definition of ‘hate speech’ as expounded by
Andrew F. Sellars prescribes that hate speech should target a group or an
individual as they relate to a group.

71. The Preamble to the Constitution consciously puts together fraternity assuring
dignity of the individual and the unity and integrity of the nation. Dignity of
individual and unity and integrity of the nation are linked, one in the form of
rights of individuals and other in the form of individual’s obligation to others to
ensure unity and integrity of the nation. The unity and integrity of the nation
cannot be overlooked and slighted, as the acts that ‘promote’ or are ‘likely’ to
‘promote’ divisiveness, alienation and schematism do directly and indirectly
impinge on the diversity and pluralism, and when they are with the objective and
intent to cause public disorder or to demean dignity of the targeted groups, they
have to be dealt with as per law. The purpose is not to curtail right to expression
and speech, albeit not gloss over specific egregious threats to public disorder and
in particular the unity and integrity of the nation. Such threats not only insidiously
weaken virtue and superiority of diversity, but cut-back and lead to demands
depending on the context and occasion, for suppression of freedom to express and
speak on the ground of reasonableness. Freedom and rights cannot extend to
create public disorder or armour those who challenge integrity and unity of the
country or promote and incite violence. Without acceptable public order, freedom
to speak and express is challenged and would get restricted for the common.
masses and law-abiding citizens. This invariably leads to State response and,
therefore, those who indulge in promotion and incitement of violence to challenge
unity and integrity of the nation or public disorder tend to trample upon liberty
and freedom of others.
 10

76. Persons of influence, keeping in view their reach, impact and authority they
yield on general public or the specific class to which they belong, owe a duty and
have to be more responsible. They are expected to know and perceive the meaning
conveyed by the words spoken or written, including the possible meaning that is
likely to be conveyed. With experience and knowledge, they are expected to have a
higher level of communication skills. It is reasonable to hold that they would be
careful in using the words that convey their intent. The reasonable-man’s test
would always take into consideration the maker. In other words, the expression
‘reasonable man’ would take into account the impact a particular person would
have and accordingly apply the standard, just like we substitute the reasonable
man’s test to that of the reasonable professional when we apply the test of
professional negligence. 98 This is not to say that persons of influence like
journalists do not enjoy the same freedom of speech and expression as other
citizens, as this would be grossly incorrect understanding of what has been stated
above. This is not to dilute satisfaction of the three elements, albeit to accept
importance of ‘who’ when we examine ‘harm or impact element’ and in a given
case even ‘intent’ and/or ‘content element’.

77. Further, the law of ‘hate speech’ recognises that all speakers are entitled to
‘good faith’ and ‘(no)-legitimate purpose’ protection. ‘Good faith’ means that the
conduct should display fidelity as well as a conscientious approach in honouring
the values that tend to minimise insult, humiliation or intimidation. The latter
being objective, whereas the former is subjective. The important requirement of
‘good faith’ is that the person must exercise prudence, caution and diligence. It
requires due care to avoid or minimise consequences. ‘Good faith’ or ‘no-
legitimate purpose’ exceptions would apply with greater rigour to protect any
genuineacademic, artistic, religious or scientific purpose, or for that matter any
purpose that is in public interest, or publication of a fair and accurate report of
any event or matter of public interest. Such works would get protection when they
were not undertaken with a specific intent to cause harm. These are important and
significant safeguards. They highlight importance of intention in ‘hate speech’
adjudication. ‘Hate speech’ has no redeeming or legitimate purpose other than
hatred towards a particular group. A publication which contains unnecessary
asides which appear to have no real purpose other than to disparage will tend to
evidence that the publications were written with a mala fide intention. However,
opinions may not reflect mala fide intention.

78. The present case, it is stated, does not relate to ‘hate speech’ causally
connected with the harm of endangering security of the State, but with ‘hate
speech’ in the context of clauses (a) and (b) to sub-section (1) of Section 153A,
Section 295A and sub-section (2) to Section 505 of the Penal Code. In this context,
it is necessary to draw a distinction between ‘free speech’ which includes the right
to comment, favour or criticise government policies; and ‘hate speech’ creating or
spreading hatred against a targeted community or group. The former is primarily
concerned with political, social Racial and Religious Tolerance, 2001 (Victoria,
Australia) and economic issues and policy matters, the latter would not primarily
focus on the subject matter but on the substance of the message which is to cause
humiliation and alienation of the targeted group. The object of criminalising the
latter type of speech is to protect the dignity (as explained above) and to ensure
political and social equality between different identities and groups regardless of
caste, creed, religion, sex, gender identity, sexual orientation, linguistic preference
etc. Freedom to express and speak is the most important condition for political
democracy. Law and policies are not democratic unless they have been made and
subjected to democratic process including questioning and criticism. Dissent and
criticism of the elected government’s policy, when puissant, deceptive or even false
would be ethically wrong, but would not invite penal action. Elected
representatives in power have the right to respond and dispel suspicion. The
 11

‘market place of ideas’ and ‘pursuit of truth’ principle are fully applicable.
Government should be left out from adjudicating what is true or false, good or
bad, valid or invalid as these aspects should be left for open discussion in the
public domain. This justification is also premised on the conviction that freedom
of speech serves an indispensable function in democratic governance without
which the citizens cannot successfully carry out the task to convey and receive
ideas. Political speech relating to government policies requires greater protection
for preservation and promotion of democracy. Falsity of the accusation would not
be sufficient to constitute criminal offence of ‘hate speech’.”

13. The Hon'ble Supreme Court, in the case of Patricia Mukhim Vs.
State of Meghalaya and Others; 2021 SCC Online SC 258, has held
that only where the written or spoken words have the tendency of creating
public disorder or disturbance of law and order or affecting public
tranquillity, the law needs to step in to prevent such an activity. The
Hon'ble Supreme Court regarding right to freedom of speech has held as
under in paragraph 14:-

“14. India is a plural and multicultural society. The promise of liberty, enunciated in
the Preamble, manifests itself in various provisions which outline each citizen’s
rights; they include the right to free speech, to travel freely and settle (subject to
such reasonable restrictions that may be validly enacted) throughout the length and
breadth of India. At times, when in the legitimate exercise of such a right,
individuals travel, settle down or carry on a vocation in a place where they find
conditions conducive, there may be resentments, especially if such citizens prosper,
leading to hostility or possibly violence. In such instances, if the victims voice their
discontent, and speak out, especially if the state authorities turn a blind eye, or drag
their feet, such voicing of discontent is really a cry for anguish, for justice denied –
or delayed. This is exactly what appears to have happened in this case.”

14. The Hon'ble Supreme Court, in the Case of Vinod Dua vs Union
Of India and Others; 2021 SCC OnLine SC 414, had held that a citizen
has a right to say or write whatever he likes about the Government, or its
measures, by way of criticism or comment, so long as he does not incite
people to violence against the Government established by law or with the
intention of creating public disorder and that is only when the words or
expressions have pernicious tendency or intention of creating public
disorder or disturbance of law and order that Sections 124-A and 505 of
the IPC must step in.
 12

15. The word 'Incitement' has been considered by the Hon'ble Supreme
Court in the Case of Amish Devgan Vs. Union of India and Others
(Supra). The instigation must necessarily and specifically be suggestive of
the consequences and sufficient certainty to incite the consequences must
be capable of being spelt out to be incitement. The word 'Promote' does
not imply mere describing and narrating a fact, or giving opinion,
criticising the point of view or actions of another person. It requires that
the speaker should actively incite the audience to cause public disorder.
This active incitement can be gauged by the content of the speech, the
context and surrounding circumstances and the intent of the speaker.
However, in case the speaker does not actively incite the descent into
public disorder and is merely pointing out why a certain person or group is
behaving in a particular manner, what are their demands and their point of
view or when the speaker interviews such person or group, it would be a
passive delivery of facts and opinions which may not amount to
promotion. In such circumstances it can not be said that the news was
published to create nuisance or riot and incite the peaple.

16. Adverting to the facts of this case, the FIR was lodged alleging
therein that the petitioners by publication of the alleged news and the
aforesaid tweet sought to provocate the masses, spread riot, tarnish the
image of medical officers by proving wrong to the panel of Medical
Officers and disturb law and order and though the doctors who performed
the postmortem denied that they have told the victim's family that the
cause of the death was bullet injuries but the petitioner no.1 did not delete
the tweet. Perusal of the publication made by the petitioners indicate that it
mentions the fact of incident, thereafter the statement of the family
members regarding incident and alleged information given by the doctors
 13

to him, denial of the U.P. Police and the fact as to what happened that day.
This publication was made on 30.01.2021 at 10.08 A.M. and on the very
same day a clarification of the three doctors was issued by Rampur Police
at 04:39 PM, immediately thereafter at 04:46 PM, the same was also
published by the petitioners. The aforesaid news items does not disclose
that any opinion was expressed by the petitioners with consequences
thereof, therefore this Court does not find any opinion or assertion on the
part of the petitioners which may have the effect of provocating or inciting
the people. Nothing was also brought before this court to indicate that
there was any disturbance or riot which may have any bearing on public
disorder on account of the publication of news/ tweet of the petitioners.

17. The Hon'ble Supreme Court in the case of Niharika Infrastructure

Pvt. Ltd. Vs. State of Maharashtra and Others; 2021 SCC OnLine SC
315 has recorded its conclusions in regard to quashing of the F.I.R. /
criminal proceedings, according to which the F.I.R. can be quashed on the
parameters laid down in the case of R.P. Kapoor Vs. State of Punjab;
AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal; 1992 Supp (1)
SCC 335. The cases in which the F.I.R. / complaint can be quashed have
been identified in paragraph 102 of Bhajan Lal (Supra) which is
extracted below:-

“102.(1) where the allegations made in the First Information Report or the complaint,
even if they are taken at their face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against the accused;
(2) where the allegations in the First Information Report and other materials, if any,
accompanying the F.I.R. do not disclose a cognizable offence, justifying an investi-
gation by police officers under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code;
(3) where the uncontroverted allegations made in the FIR or 'complaint and the
evidence collected in support of the same do not disclose the commission of any
offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but
 14

constitute only a non-cognizable offence, no investigation is permitted by a police

officer without an order of a Magistrate as contemplated under Section 155(2) of the
Code;
(5) where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal proceeding is instituted) to the institu-
tion and continuance of the proceedings and/or where there is a specific provision in
the Code or the concerned Act, providing efficacious redress for the grievance of the
aggrieved party;
(7) where a criminal proceeding is manifestly attended with mala fide and/or where
the proceeding is maliciously instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and personal
grudge.”

18. In view of above this court is of the view that since the allegations
made in the FIR does not disclose the commissioning of offences under
Sections 153-B and 505 (2) IPC, therefore, it is not sustainable in the eyes
of law and is liable to be quashed. The FIR is accordingly quashed. The
writ petition is allowed. No order as to costs.

Order Date :- 25.5.2022

Haseen U.

Digitally signed by HASEENUDDIN

Date: 2022.05.25 16:22:36 IST
Reason:
Location: High Court of Judicature
at Allahabad