Rajasthan High Court - Jodhpur
Munnalal vs State Of Rajasthan on 2 September, 2022
Author: Manoj Kumar Garg
Bench: Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 9876/2022
Munnalal S/o Bhanwarlal, Aged About 30 Years, Gopalpura, Teh.
Sujangarh, P.s. Sujangarh Sadar, Dist. Churu.
----Petitioner
Versus
State Of Rajasthan, Through Pp
----Respondent
For Petitioner(s) : Mr. Pankaj Gupta
For Respondent(s) : Mr. Mukesh Trivedi
Mr. Saurabh Maheshwari
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
Order 02/09/2022 This anticipatory bail application under Section 438 Cr.P.C. has been filed by the petitioner apprehending his arrest in connection with FIR No. 61/2022, Police Station Sujangarh, District Churu for offences under Sections 354A, 354-C, 153-A, 298, 509 IPC.
Learned counsel for the petitioner submits that the petitioner has nothing to do with the alleged crime and he has been falsely implicated in this case out of political rivalry. It is argued that the petitioner is a reputed person. He shall not abscond and will cooperate in the criminal proceedings. Learned counsel relied upon the decision of Hon'ble Apex Court in the case of Mohammed Zubair Vs. State of NCT of Delhi & ors (2022 Live Law (SC) 629). It is further submitted that the petitioner had filed S.B. Criminal misc. petition No. 5210/2022 before this Court in which the Co-ordinate bench of this Court directed the (Downloaded on 06/09/2022 at 09:58:54 PM) (2 of 6) [CRLMB-9876/2022] investigation to consider the petitioner's representation in the light of judgment of Hon'ble Apex Court in the case of Mohammed Zubair (Supra). However, the investigating officer is not considering his representation and is bent upon arresting the petitioner. Therefore, the petitioner maybe enlarged on anticipatory bail.
Per contra, learned Public Prosecutor vehemently opposed the bail application. While reiterating the prosecution case stated in the FIR, he contends that the petitioner had made several posts disturbing religious feelings and outraging the modesty of a woman. Therefore, at this stage, no case for grant of anticipatory bail is made out in favour of the petitioner.
Heard learned counsel for the parties and perused the material available on record including the case diary.
On perusal of the FIR filed by the complainant as well as case diary, it is revealed that the allegation against the petitioner is that of posting alleged defamatory/inciting material on social media having no authentication against Mahant of Thakurji temple and a widow lady which disturbed the religious sentiments of people. The viral messages containing offending material have been supplied by the complainant to the investigating officer which is available on record. Further from the perusal of statements recorded under Section 161 & 164 Cr.P.C, it cannot be said that the petitioner has falsely been implicated in this case. Therefore, the case needs a thorough and fair investigation to unravel the truth in the allegations levelled.
It is well settled that the power exercisable under Section 438 Cr.P.C. is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely (Downloaded on 06/09/2022 at 09:58:54 PM) (3 of 6) [CRLMB-9876/2022] implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. It is also well settled that ordinarily, arrest is a part of the process of investigation intended to secure several purposes and it may be necessary to curtail the freedom of an accused in order to enable the investigation to proceed without hindrance and prevent the disappearance of the accused.
In the case in hand, considering the material placed on record, a strong prima facie case is available against the petitioner and it would not be proper at this stage to release the applicant on pre-arrest bail. So far as the case of Mohammed Zubair (supra) relied upon by counsel for the petitioner is concerned, the Hon'ble Apex Court granted interim protection to Mohammed Zubair as he was a journalist and after being granted interim bail in one FIR, he was subjected to sustained investigation through successive FIRs registered in various police stations. Thus, it was held that there was no justification to keep the accused in continued custody and to subject him to an endless round of proceedings before diverse courts, which is not the case in hand.
There is indeed freedom of speech and expression granted to every citizen as per Article 19(1)(a) of the Constitution of India. Anybody can make any comments on social media because freedom of speech and expression is a fundamental right. But people are making comments on social media without properly understanding the facts. There is freedom of speech and expression to every citizen but it does not entitle a person to promote disharmony or feelings of enmity, hatred or ill-will, and insulting the religion sentiments or beliefs. (Downloaded on 06/09/2022 at 09:58:54 PM)
(4 of 6) [CRLMB-9876/2022] Hon'ble Apex Court in the case of Amish Devgan vs. Union of India (UOI) and Ors. reported in (2021)1SCC1 has observed as under :-
"15. Benjamin Franklin, in 1722, had stated:
Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as public Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or control the Right of another; And this is the only Check it ought to suffer, and the only Bounds it ought to know.
Two centuries later it remains difficult in law to draw the outmost bounds of freedom of speech and expression, the limit beyond which the right would fall foul and can be subordinated to other democratic values and public law considerations, so as to constitute a criminal offence. The difficulty arises in ascertaining the legitimate countervailing public duty, and in proportionality and reasonableness of the restriction which criminalises written or spoken words. Further, criminalisation of speech is often demarcated and delineated by the past and recent significant events affecting the nation including explanation of their causes. Therefore, constitutional and statutory treatment of 'hate speech' depends on the values sought to be promoted, perceived harm involved and the importance of these harms.13 Consequently, a universal definition of 'hate speech' remains difficult, except for one commonality that 'incitement to violence' is punishable.
16. This Court in 2014, in Pravasi Bhalai Sangathan had requested the Law Commission of India to examine the possibility of defining the expression (Downloaded on 06/09/2022 at 09:58:54 PM) (5 of 6) [CRLMB-9876/2022] 'hate speech', and make recommendations to the Parliament to curb this menace, especially in relation to electoral offences. This Court had expressed difficulty in 'confining the prohibition to some manageable standard'. The Law Commission, in its 267th Report on Hate Speech had recommended amendments to the criminal laws for inserting new provisions prohibiting incitement to hatred and causing fear, alarm, or provocation of violence in certain cases, but these have not yet been accepted by the government. Referring to the Constituent Assembly Debates and the Constitution, the Report observes that the right to speech was not to be treated as absolute, but subject to restrictions on the grounds like sedition, obscenity, slander, libel and interest of public order. If the State is denied power to restrict speech on the basis of content, it might produce debates informed by prejudices of the public that would marginalise vulnerable groups and deny them equal space in the society. The mode of exercise of free speech, the context and the extent of abuse of freedom are important in determining the contours of permissible restrictions. The Commission also felt that laying down of a definite standard might lead to curtailment of free speech; a concern that has prevented the judiciary from defining hate speech in India. However, this is not to deny that the courts while adjudicating each case have to inevitably apply an objective test in terms of the legislative provisions.
This is an inescapable legal necessity to ensure certainty and to prevent abuse and misuse, as failure to do so would curtail and subjugate the right to free speech and expression to occasional whims and even tyranny of subjective understanding of the authorities. Difference between free speech and hate speech in the context of the penal law must be understood." (Downloaded on 06/09/2022 at 09:58:54 PM)
(6 of 6) [CRLMB-9876/2022] In view of the foregoing, the bail application preferred by the petitioner under Section 438 Cr.P.C. is hereby dismissed.
(MANOJ KUMAR GARG),J 252-BJSH/-
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